The State of Western Australia v Mack
[2012] WASC 127
•17 APRIL 2012
THE STATE OF WESTERN AUSTRALIA -v- MACK [2012] WASC 127
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 127 | |
| Case No: | INS:49/2011 | 30 MARCH 2012 | |
| Coram: | McKECHNIE J | 17/04/12 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Accused fit to plead Order for trial by judge alone Accused may attend trial by video link | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA BRENT DONALD MACK |
Catchwords: | Criminal law Fitness to plead Accused suffers from autism Whether deterioration in condition Trial by judge without jury No new principles Application to attend trial by video link Turns on own facts |
Legislation: | Criminal Law (Mentally Impaired Accused) Act 1996 (WA) Criminal Procedure Act 2004 (WA) |
Case References: | Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 R v Taylor (1992) 77 CCC (3d) 551 The State of Western Australia v Rayney [2011] WASC 326 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecution
AND
BRENT DONALD MACK
Accused
Catchwords:
Criminal law - Fitness to plead - Accused suffers from autism - Whether deterioration in condition - Trial by judge without jury - No new principles - Application to attend trial by video link - Turns on own facts
Legislation:
Criminal Law (Mentally Impaired Accused) Act 1996 (WA)
Criminal Procedure Act 2004 (WA)
(Page 2)
Result:
Accused fit to plead
Order for trial by judge alone
Accused may attend trial by video link
Category: B
Representation:
Counsel:
Prosecution : Mr D Dempster
Accused : Mr S F Rafferty
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
Accused : Seamus Rafferty
Case(s) referred to in judgment(s):
Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1
R v Taylor (1992) 77 CCC (3d) 551
The State of Western Australia v Rayney [2011] WASC 326
(Page 3)
- McKECHNIE J:
How this matter comes to court
1 The accused is charged that on a date unknown between 18 December 2008 and 29 December 2008 at Mount Hawthorn he murdered his mother, Ah Bee (also known as Pauline) Mack. A trial date has been set.
2 The accused applied for trial by judge alone. At a status hearing on 16 February 2012 questions also arose as to the accused's fitness for trial.
3 Both matters were adjourned for hearing to 30 March 2012. The prosecution did not oppose the hearing for trial by judge alone. Having read the affidavit filed by Mr Rafferty in support of the application, and hearing submissions, I announced that if there was to be a trial, it would be before a judge sitting without a jury and that I would publish reasons in due course.
4 The hearing then continued on the question of the accused's fitness for trial.
5 Though the accused faces significant difficulties due to pervasive autism, I am not persuaded that he is unfit for trial. However, this issue can be revisited if the trial judge finds a further deterioration in the accused's mental impairment.
The prosecution case
6 This overview of the prosecution case is taken from the statement of material facts:
Mrs MACK, was born in Malaysia in 1944 and put up for adoption at an early age by her family. She was subsequently adopted into a local family and remained in Malaysia until the early 1980s when she moved to Australia and married Donald Ernest Mack.
This marriage resulted in two children one being the accused (Brent MACK) and another son Adrian MACK.
Mrs Mack maintained a very private life and had spasmodic contact with extended family members and few friends. Mrs MACK's brother also moved from Malaysia sometime after her. The brother and his wife had occasional contact with the victim but this was irregular and infrequent.
In August 2008 Mrs MACK's husband Donald Ernest MACK passed away and she remained living at the Mt Hawthorn residence with the accused.
(Page 4)
- Due to a family dispute Adrian had moved out of the residence and had a VRO placed on him by his mother and brother. As a result of her husband's passing Mrs Mack inherited a substantial amount of money and other assets.
In early 2010 Mrs MACK's brother was diagnosed with cancer and his wife wrote to Mrs MACK on 05/07/2010 advising her of this. Although their contact was infrequent Mrs Mack's sister in law became concerned as she believed such news would have initiated contact from Mrs Mack to check on the welfare of her brother on such an important issue. However no contact was received from Mrs Mack.
As a result the brother and his wife went to Mrs MACK's residence in Fairfield Street, Mt Hawthorn in July 2010 and they spoke with neighbours and the accused in an attempt to ascertain Mrs Mack's whereabouts as they held concerns for her safety. Mrs Mack's sister in law spoke with neighbours who informed her that the male who lived at the house (the accused - they did not know his name) had told them that his mother had returned to China. The sister in law was disturbed by this comment as Mrs MACK is from Malaysia. The accused also told his uncle that his mother had started a new life, had new friends and wanted to be left alone. This caused grave concern to both parties due to the inconsistencies in the facts that were being conveyed to them and also due to the behaviour of the accused when questioned in regard to the whereabouts of his mother. The accused was adamant however that his mother wanted nothing to do with them and refused to let them enter the house. They left and returned home.
A couple of days later a thank you card addressed to the sister in law was posted to their address. The card purported to be from Mrs MACK. Inside was a message thanking them for their concern and stated that Mrs Mack had a new life and wanted to be left alone. The writing within the card was not recognised as that of Mrs Mack and this event heightened their concerns and suspicions even further.
As a result on 6 August 2010 the family contacted Police and reported Mrs MACK as a missing person. Police attended the victim's home however no one answered the door. The following morning Police re attended and spoke to the accused. The accused told Police his mother had moved out just before Christmas 2008 and wanted nothing to do with her family. He refused to supply any details to allow Police to contact the victim.
The officers later contacted the Major Crime Squad who commenced a comprehensive investigation to locate Mrs MACK. Inquiries were made with all government departments with whom the victim had contact as well as business contacts. No person had seen or had direct contact with the victim since late 2008. Immigration has no records of Mrs MACK departing any Australian port.
(Page 5)
- Enquiries with the Commonwealth Bank showed Mrs MACK had several accounts and term deposits which had matured.
The term deposits had been deposited into one particular account from which large sums had been withdrawn by way of cheque and paid into the accused's account. (This relates to the Fraud charge).
It has been determined that the money was transferred to this account after the bank received authorisation allegedly from Mrs MACK. It has since been established that the authorisation was via an email account belonging to the accused.
It has also been established that the Thank You card received by Mrs MACK's sister in law was computer generated and printed on a printer. The accused finger prints were located on the card despite him denying any knowledge of the card.
It will be alleged that the accused, apart from the cheques, has forged the victim's signature on numerous different forms and notices. This was done either to obtain money or give the impression the document was from Mrs MACK.
The accused also introduced himself to his mother's business associates as the person now responsible for all decisions. He advised them that his mother had gone away and would not be returning.
On Thursday 26 August 2010 Detectives from Major Crime Squad and Western Suburbs executed a search warrant at the Fairfield St address. No evidence of Mrs MACK being present was located. The accused was interviewed at length and would only say that his mother was alive and refused to give details of her location.
It is alleged that on an unknown date between the 17 December 2008 and 6 August 2010 the accused murdered the victim at an unknown location by unknown means.
7 It is important to put the statement of material facts in context. These are all facts the prosecution must prove. As Mr Rafferty points out, there is no body, there is nothing that suggests that the deceased has met her end or how she might have met her end. There is no forensic evidence. There is no evidence of the alleged circumstances of the commission of any offence.
8 The prosecution case is based on circumstances which it contends point irresistibly to the accused's guilt. The circumstances are not complex to follow, whether or not an inference of guilt can be drawn.
(Page 6)
The evidence on the question of fitness to plead
(a) The observations of defence counsel and the accused's position
9 Mr Rafferty swore an affidavit in support of the application for trial by judge alone and detailed:
5. I first met the accused at Hakea Prison on 31 October 2011. It was immediately apparent that the accused had a number of unusual personal characteristics, including:
a) The absence of eye contact, in that his head remained bowed throughout the interview.
b) The robotic manner in which he spoke.
c) The shortness of his sentences and the absence of any fluent conversation with me.
d) The inability to develop any form of rapport throughout the interview.
6. At a subsequent meeting at Hakea Prison on 2 February 2012, the accused advised that he would not participate in the trial in any way if he had to attend court in person. He stated that he would only participate in the trial if he was able to appear by video-link from Hakea Prison.
...
10. Having regard to the accused's attitude towards the trial, there are two ways in which the matter will proceed, namely:
a) If he is forced to attend Court, he will not participate in any way, including the provision of instructions, thus making the presentation of his defence extremely difficult.
b) If he is not forced to attend Court, he will appear on a television screen with his head bowed throughout the trial. It will make the obtaining of clear instructions during the trial difficult and has the potential to affect the running of the trial
10 I ordered that the accused should attend the hearing so that I could see him. The accused entered court 6 in company of security officers. He entered the court without eye contact and after being directed, hurried into the dock and sat down. He stood when asked but made no response to an enquiry about his name. He then sat and for the remainder of the hearing
(Page 7)
- averting all eye contact, keeping his head down, staring at the corner of the dock. He was occasionally twitching or shaking.
(c) Records of interview (VROI)
11 The accused was interviewed by police on 26 August 2010, 2 September 2010 and 10 September 2010.
12 In the first two interviews the accused made eye contact with the interviewer. His answers are coherent and appropriate in that he is able to freely convey by his answer that which he wishes to convey. His mood is congruent with his situation. In the final interview on 10 September 2010, his eye contact with interviewers is less although still observable but he spends more time looking to his right at the edge of the table. That said, however, his answers remained logical and coherent. At one point he makes a light and joking remark about an officer's tie.
(d) The telephone call 19 October 2011
13 On 19 October 2011, the accused telephoned his brother, Adrian, and spoke generally about the case. The accused's tone was appropriate, his thoughts and ideas coherent. He displayed a good grasp of the issues about which he was speaking which related to possible courses of action relative to his litigation. While on occasion there was a slight stammer, the overall impression did not give rise to any indication of an unfitness to plead.
(b) The psychiatric evidence
Dr Mark Hall
14 Dr Hall is a well-qualified psychiatrist retained by the defence. He interviewed the accused for over three hours on 19 December 2011. That is only two months after the telephone call. His report was tendered and supplemented by oral evidence.
15 In addition to his interview, Dr Hall had available to him the accused's medical record with the Department of Corrective Services, five pages of notes written by the accused together with a copy of the statement of material facts.
16 Significantly, he did not have then available the telephone call of 19 October 2011. Nor did he have copies of the VROI's.
(Page 8)
17 In Dr Hall's opinion, the accused is not fit to stand trial because he lacks the ability to follow the course of the trial and the ability to properly defend the charge.
18 This is because of his autism:
Autism is a neurological disorder, essentially, with cognitive psychiatric and behavioural manifestations. It's a lifelong condition, the cause is unknown, and it produces problems in a couple of areas that you can broadly define. One is a severe and pervasive impairment in social interaction, as well as severe and pervasive impairment in communication skills. There is almost invariably a degree of cognitive impairment associated with that as well (ts 64).
19 Dr Hall's observations of the accused on two occasions were summarised:
He has impairment in the use of multiple non-verbal behaviours, including eye contact and body posture; a lack of social reciprocity; the failure to develop any appropriate peer relationships. He also exhibits impairments in communication in relation to the inability to sustain a conversation; stereotyped use of language; monotonous speech with an abnormal, robotic rhythm to it; and inability to understand the non-literal aspects of communication or applied meaning. … [H]is ability to understand the abstract is virtually absent and everything is very much concrete interpretations of things.
20 This description of the accused's interaction with Dr Hall, I accept is a factually accurate description when seen by Dr Hall. However, it is different from the appearance of the accused on the VROI's. The officers were appropriate and non-threatening but nevertheless the interview was obviously conducted in intimidating circumstances when the accused well knew he was being accused of the murder of his mother. The VROI's must have been stressful but the accused was able to follow the questions and make response.
21 Dr Hall listened to the telephone call of 19 October 2011 in court and explained that the dialogue on the recording is essentially a factual narrative and the volume and the amount of speech that he engages in, relative to the amount that anyone else who has come in contact with him has been able to get out of him, is consistent with the way in which someone with autism might speak to someone with whom they are extremely familiar; that is, known from birth, like a brother.
22 Dr Hall also heard the accused speak in a similar way, on the previous Monday, when he was speaking to two other members of a
(Page 9)
- working party about native plants. On that occasion it appears the accused was quite animated.
23 Dr Hall's opinion was that the accused does not process emotion, particularly negative emotion, and his response is to retreat from the situation either physically or into himself. Under those circumstances one would expect the cognitive defects which were present would become amplified under those circumstances. Those deficits include short term memory, and concrete thinking which would be difficult.
24 Dr Hall's explanation as to why the accused would be unable to promptly defend himself:
Mr Mack tends to be quite dichotomous in his thinking, so from my assessment of him, he divides things into a personal context - that's his language - personal context or some other context, such as a business context. If anything is relevant to himself personally, he tends to have a somewhat all-or-nothing approach to that. So he obliterates that from discussion completely. If it's something to do with something about which he's factually knowledgeable, then he's probably happy to talk at length about it. I would expect that - from my interviews with Mr Mack, I would expect that he would be very reluctant to talk about any matters that might arise during the course of the trial (ts 69).
- Dr Hall gave an example of the personal dichotomy.
25 Dr Hall admitted that the conclusion he reached as to the accused's inability to give instructions and present his defence was a difficult conclusion.
Dr Salvatore Febbo
26 Dr Febbo is another well-qualified psychiatrist, called by the prosecution. He interviewed the accused at Hakea Prison on 16 June 2011 for about two hours. He also had material available to him, including the VROI's. His report was tendered, supplemented by oral evidence. There is a disagreement between he and Dr Hall as to the proper classification of the accused's disorder. It is of no significance. There is also a different result recorded by each psychiatrist for Global Assessment of Functioning (GAF).
27 In Dr Febbo's opinion:
[U]sing a DSM-IV diagnostic framework, the presentation on Axis One (clinical disorders) is in keeping with a Pervasive Developmental Disorder, Autistic Disorder. ... On Axis Five (Global Assessment of Functioning)
(Page 10)
- [the accused] would currently attract a GAF scale score of 60 or moderate symptoms.
28 Dr Hall also referred to DSM IV-TR. He made no diagnosis under Axis 1 (clinical disorders), but under Axis II (personality disorders) he diagnosed an autistic disorder (autism). At the time of his examination, nearly six months after Dr Febbo, the GAF score was estimated at 30 (serious impairment in communication and functioning). This difference is significant and I take it into account.
29 Dr Febbo interviewed Mr Mack at Hakea Prison on 16 June 2011. He had available to him a great deal more material than was supplied to Dr Hall.
30 Dr Febbo's description of the interview:
He spent almost the entire interview looking down and avoided eye-contact. Overall his speech was normal in rate but there was a stilted quality to his speech. The process of obtaining information from Mr Mack was at times slow and time-consuming. At times he became focused on the way a question had been asked rather [than] in the content of the question itself. There was no evidence to suggest the presence of formal thought disorder.
31 The accused performed standard clinical tests of concentration and there was no evidence to suggest the presence of any difficulties in registration in three standard clinical tests of concentration or two minute recall.
32 Dr Febbo disagreed with Dr Hall about whether there is a dichotomy. He said:
I think that there are certain areas that Mr Mack doesn't seem to have a problem talking about, and there are areas that he does have problems talking about, but I don't think that one can simply divide that into whether it's emotional, whether it causes emotional distress (ts 87)
33 Dr Febbo could not rule out a dichotomy arises directly from his autism but pointed out that there are probably matters that all of us would be extremely reluctant to talk about.
34 Dr Febbo is prepared to concede that the accused's cognitive ability or performance has a potential based on anxiety to deteriorate a significant degree during the course of the trial. However, his firm opinion is that the accused is fit for trial.
(Page 11)
The legal principles
35 The question of mental fitness having been properly raised, the question is to be decided on the balance of probabilities: Criminal Law (Mental Impaired Accused) Act 1996 (WA) s 12.
36 Some of the difficult issues that arise are set out in Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 (Gleeson CJ):
Unfortunately, it is not unusual for the criminal justice system to have to deal with people with mental disorders; sometimes severe disorders. The existence of the disorder does not, of itself, prevent them from being brought to trial. It certainly does not mean that they must be allowed to be at liberty. It is not to be overlooked, as Deane and Dawson JJ pointed out in Kesavarajah v The Queen, that the usual consequence of a finding that a person is unfit to plead is indefinite incarceration without trial. It is ordinarily in the interests of an accused person to be brought to trial, rather than to suffer such incarceration.
In the case of R v Berry Geoffrey Lane LJ, criticising a direction to a jury empanelled to determine an issue of fitness to plead, said:
It may very well be that the jury may come to the conclusion that a defendant is highly abnormal, but a high degree of abnormality does not mean that the man is incapable of following a trial or giving evidence or instructing counsel and so on.
The Ontario Court of Appeal, in R v Taylor, recorded the following propositions, agreed by counsel, as representing the state of authority in that province:
(a) The fact that an accused person suffers from a delusion does not, of itself, render him or her unfit to stand trial, even if that delusion relates to the subject-matter of the trial.
(b) The fact that a person suffers from a mental disorder which may cause him or her to conduct a defence in a manner which the court considers to be contrary to his or her best interests does not, of itself, lead to the conclusion that the person is unfit to stand trial.
(c) The fact that an accused person's mental disorder may produce behaviour which will disrupt the orderly flow of a trial does not render that person unfit to stand trial.
(d) The fact that a person's mental disorder prevents him or her from having an amicable, trusting relationship with counsel does not mean that the person is unfit to stand trial.
(Page 12)
- In the present case, the ultimate test to be applied is the statutory test set out earlier. However, each of the above propositions is sound, and they are consistent with the statutory test [24] - [27].
37 The points from R v Taylor (1992) 77 CCC (3d) 551, 564 - 565 particularly (b), (c) and (d) have relevance to the present case.
38 In Western Australia under the Criminal Law (Mentally Impaired Accused) Act s 9 Mental unfitness to stand trial is defined as follows:
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;
(b) unable to understand the requirement to plead to the charge or the effect of a plea;
(c) unable to understand the purpose of a trial;
(d) unable to understand or exercise the right to challenge jurors;
(e) unable to follow the course of the trial;
(f) unable to understand the substantial effect of evidence presented by the prosecution in the trial; or
(g) unable to properly defend the charge.
39 The particular focus of this hearing has been on s 9(e) and s 9(g).
Conclusion
40 Both the conclusions of Dr Febbo and Dr Hall should be accorded weight. They are very experienced forensic psychiatrists. There is nothing in either approach which necessarily indicates error. They have a difference of opinion reached by application of their professional judgment. Dr Hall's examination is six months after Dr Febbo's examination and it may be that the accused's mental state has deteriorated to a degree. Certainly his GAF appears to have declined.
41 My observation of the accused certainly confirms that his behaviour is unusual. I am satisfied that the accused has a mental impairment due to autism. The question is whether his detachment from his trial process manifested by apparent non-responsiveness is primarily due to his autism.
42 There is no doubt that a trial judge will have to be responsive to the problems that the accused's autism raise in relation to the conduct of the
(Page 13)
- trial to ensure that the trial is fair and that the accused is given adequate opportunity to instruct his counsel and make a proper defence. However, I am not persuaded on the balance of probabilities that the accused is unfit for trial. Where their opinions contradict, I prefer the evidence of Dr Febbo over that of Dr Hall. I acknowledge immediately that Dr Hall's interviews and opinions are more recent and that there is a potential for the accused's condition to have deteriorated not through his autism, which may fluctuate, but through the anxiety and stress of the forthcoming trial. Depression has not been diagnosed. However, Dr Febbo had available to him a far greater amount of material and crucially the VROI's. I have also had regard to my own observations which I have recounted; the telephone call of 19 October 2011, which was not long before the interviews with Dr Hall; the VROI's. I am not persuaded that the marked difference between the accused's presentation in the VROI's and his appearance in court is the result of a deterioration due to lifelong autism. Also, notwithstanding Dr Hall's explanation about the telephone call made by the accused a relatively short time before his interview, an equally plausible explanation is that the accused has decided not to engage in the trial process. The telephone call showed a good grasp of the issue he was talking about. It is likely that the accused's current presentation is more as a result of choice coupled with his autism than a result simply of his mental impairment. Applying the legal principles I have outlined to the evidence I prefer, I find that, provided the trial process accommodates the accused's autism, he is fit and able to stand trial. I am not persuaded that the accused's autism is such a contributor to his presentation that he is unfit for trial.
The reasons for trial by judge alone
43 The State did not oppose the application for trial by judge alone. That is never determinative of the issue, it being a matter for a judge in the interests of justice. However, the position of the prosecution is naturally a matter of significance and weight. The principles governing an application for trial by judge alone have been recently restated in The State of Western Australia v Rayney [2011] WASC 326. The present circumstances are somewhat different from those that have arisen in other cases. In this case the accused's autism, while falling short of an impairment rendering him unfit for trial, will necessarily make a trial more protracted and may require a greater number of adjournments than normal. If the accused participates in the trial via video link from prison this will lead to frequent adjournments, possibly lengthy, while instructions are taken. Such adjournments are unfair burden on a jury
(Page 14)
- both in the time that will have to be set aside for the trial and the fragmentary nature in which the evidence may have to be presented.
44 The accused also raises the possibility that the accused's unusual personal characteristics may cause him some prejudice in that the jury are distracted by his behaviour or draw adverse inferences against him as a result of such behaviour. I put little weight on this submission as I consider that a jury, properly instructed, would be able to put aside such matters and concentrate on the evidence in the case. However, I conclude that because of the accused's autism and its impact on the trial process generally, the interests of justice require a trial by judge alone.
Direction that the accused attend trial by video link
45 In the event that I decided that the accused was fit for trial, Mr Rafferty asked for a direction that the accused be permitted to attend the trial by video link. He points out that the attitude of the accused is such that:
(a) if he is forced to attend court he will not provide instructions to his counsel and will not participate in the trial; and
(b) if he is not forced to attend court he will appear by video link from Hakea Prison. The accused does not wish to be present in court as he does not feel comfortable in that setting.
46 Dr Hall and, to some extent Dr Febbo, confirms that the accused would be more comfortable in a place other than court.
47 The normal rule is that an accused person should be present in trial to face his accuser (and them to face him or her). The accused's reaction to evidence is another powerful reason as to why the accused should be able to be observed during the trial process. However, the Criminal Procedure Act 2004 (WA) does allow for an accused to attend a trial by a video link. I am sure that in this case attendance by video link will materially assist the accused in obtaining a fair trial. That outweighs other considerations which would normally require the attendance of an accused in person.
Conclusion and orders
1. The accused is fit for trial.
2. The trial will take place before a judge sitting without a jury.
3. The accused be permitted to attend the trial by video link.
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