The State of Western Australia v Tax - [2010] WASC 208

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- TAX [2010] WASC 208

CORAM: MARTIN CJ

DELIVERED : 18 JUNE 2010

PUBLISHED : 10 AUGUST 2010

FILE NO/S: INS KUN 7 of 2010

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
HAROLD TAX
Accused

Catchwords:

Whether accused mentally fit to stand trial - Limitations of legislative regime

Legislation:

Criminal Code (WA), s 204, s 320(4)
Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 8, s 9, s 12, s 19

Result:

Indictment and committal quashed
Unconditional release order made

Category: A

Representation:

Counsel:

Prosecution : Ms L J Keane
Accused: Ms B M Lonnie

Solicitors:

Prosecution : Director of Public Prosecutions (WA)
Accused: Legal Aid (WA)

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

Nil

MARTIN CJ: (This judgment was delivered extemporaneously on 18 June 2010 and has been edited from the transcript.)

Introduction

The question before me is whether Mr Harold Tax is mentally fit to stand trial in relation to two charges that have been brought against him. The first charge is the charge of doing an indecent act with intent to insult or offend. The allegations made by the State in relation to that charge are that at about 6.40 am on the morning of 13 December 2008 the complainant, who was then aged about 41 years of age, was jogging along a street in Halls Creek when she noticed a male person in the park adjacent to the street. As she approached the corner of the street she observed that person to be jogging three metres behind her and as she turned left into another street the accused, so the State says, continued to follow her.
The complainant looked at the face of the person following her and made certain observations, then crossed into another street, after which the State alleges that the accused called out, 'Mrs, Mrs, you want this one,' and made reference to his genital area. He grabbed his crotch and was pushing his hips forward in a thrusting motion. He then shouted out sexual words and ran up Thomas Street following the complainant, showing, on the State's case, a degree of persistence.
The State accepts that there are possible issues about identification regarding this charge, and I have been told by counsel for Mr Tax that there may be alibi evidence available by way of defence. So, in relation to the criteria that I am required to consider under s 19 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (the Act), it seems to me that I should regard that case as a reasonable case with potential issues that would require resolution if the matter were to proceed to trial.
The second charge brought against Mr Tax is that of indecent dealing with a child under the age of 13 years. The complainant in that case is a three‑year‑old female child. It is alleged by the State that at about 4 pm on 7 April 2009 in the Mulan Aboriginal community the complainant disappeared from the community store where she was with her mother. She was later found naked inside the residence occupied by the accused some distance from the store.
The State's case is that the complainant was lying naked on a mattress and the accused was kneeling next to her using his hand to touch her in the genital area. It is said by the State that the complainant ran from the residence and was located by her mother who was looking for her.
The State accepts that the current State of the evidence in relation to that charge is such that it could only be characterised as a poor State case. There is little admissible direct and cogent evidence relating to that offence, so although the allegations made by the State in relation to this charge are, of course, very serious, they are offset by the lack of strength in the evidence the State currently has available to it to support them.
When a question arises as to the mental fitness of an accused person to stand trial, s 12 of the Act provides that the judge determining that question is to determine it on the balance of probabilities after inquiring into the question and informing himself or herself in any way the judge might think fit. In this case all the evidence that has been produced to me has essentially been hearsay and has taken the form of letters and statements from others. The State has not objected to that course and with respect to the State, that it is entirely appropriate because I am satisfied that the material that has been provided is reliable and that I can act upon it.

Does Mr Tax suffer a mental illness or impairment?

The first question to assess is whether the accused person suffers either mental illness or mental impairment. Mental illness is defined by s 8 of the Act to mean 'an underlying pathological infirmity of the mind, whether of short or of long duration and whether permanent or temporary'. Mental impairment means 'intellectual disability, mental illness, brain damage or senility'. Section 9 of the Act sets out the criteria that the court is to apply in determining the fitness of an accused person to stand trial and includes seven alternative elements, including the accused's understanding of the nature of the charge, the requirement to plead, and the purpose of the trial.
Dealing with the first question, being the existence of mental illness or mental impairment, I have received in evidence a report from Dr Bala who is a psychiatrist who interviewed Mr Tax with the assistance of an interpreter in the Kukatja language. Dr Bala reports that Mr Tax was born on 13 June 1990 and is therefore currently 20 years of age. At the time of his birth his mother was only 12 years old. He was born after a prolonged labour and emergency caesarean section. He was also born prematurely at about 34 to 36 weeks. He was observed to be flat at birth, which is associated with impaired neurological functioning. He had an extremely small head circumference which placed him in the bottom tenth percentile of children his age on that measure. Mr Tax has significant intellectual disability. He cannot read or write. His schooling seems to have been very limited, although his general health is good. He currently works on the Community Development Employment Program (CDEP) and is sometimes assisted in that regard by his uncle, Mr Johnny Gordon.
Dr Bala examined Mr Tax and considered that he had an intellectual disability. He made little spontaneous speech, even through the interpreter, in the course of interview. Mr Tax also advised Dr Bala that he regularly hears lots of voices both during the day and the night. Dr Bala concluded that it was unclear whether Mr Tax suffered from an underlying psychiatric illness, but he did conclude that he suffers a moderate degree of intellectual impairment. He considers that degree of mental impairment to amount to intellectual disability so as to fall within the definition of 'mental impairment' to which I have already referred.
Dr Bala is currently unable to identify the causes of that intellectual impairment and considers that Mr Tax would benefit from a thorough medical evaluation. Those causes might include autism spectrum disorder or organic disorders such as epilepsy. Nutritional deficiency, birth trauma or foetal alcohol syndrome are all possible causes although Dr Bala is unable at this time to indicate whether any of those conditions are the cause of the mental impairment which he has identified. There is clearly, in Dr Bala's view, a deficit in communication, consequent reduction in reciprocal social interaction and a capacity to develop and maintain relationships which extends well beyond cultural and language factors.
In relation to the specific criteria provided by s 9 of the Act, Dr Bala has provided an opinion that Mr Tax does not at all appear to know what he has been charged with; he does not understand the significance of the difference between pleading guilty and not guilty, despite repeated efforts to explain that to him; he does not seem to understand the trial process and the purpose of a trial, again despite efforts to describe that to him; and he seems to lack the capacity to challenge jurors and other witnesses in an adversarial setting.
Mr Bala also considers that Mr Tax may not be able to follow the course of the trial satisfactorily because of deficits that he has in maintaining attention and focus. He also considers that Mr Tax would be unable to understand the substantial effect of the evidence presented during the trial and therefore not be able to fully defend the charge, given his cognitive impairment. So, in the view of Dr Bala, all seven criteria specified by s 9 are met in this case.
There is no evidence to the contrary. The State accepts that I should accept the evidence of Dr Bala. I therefore find, based on that evidence, that each of the seven criteria set out in s 9 is satisfied. I conclude therefore in terms of the Act that Mr Tax suffers mental impairment that renders him mentally unfit to stand trial.

Will Mr Tax become mentally fit to stand trial?

The next question under s 19 of the Act that I must address is whether I am satisfied that the accused will not become mentally fit to stand trial within six months after my finding of mental unfitness. In this regard the evidence of Dr Bala is clear. The cognitive impairment which Mr Tax suffers, and which gives rise to the consequences enunciated by Dr Bala, is unfortunately a permanent condition and is not going to change, in his view. I therefore find also that the accused will not become mentally fit to stand trial within six months.

Unconditional release or custody order - legislative deficiencies

The next question which arises under s 19(4), after quashing the indictment in respect of the first charge and the committal in respect of the second count, is whether I should release the accused or make a custody order. I cannot take the latter course until, under s 19(5), I am satisfied that a custody order is appropriate having regard to the strength of the evidence against the accused, the nature of the alleged offences and the nature of the alleged circumstances of their commission, the character, antecedents, age, health and mental condition of the accused, and the public interest.
I have already referred to the first two of those factors, that is, the strength of the evidence and the nature of each alleged offence, and I will refer to the character of the accused and the public interest in due course, but before doing that I should point out that there are, as it seems to me, a number of significant deficiencies in the legislation and the regime which has been created under this legislation.
The first significant deficiency, as it seems to me, is that under s 19(4) I have only two choices, being, an unconditional release or a custody order. There is no intermediate course available to the court such as a conditional release in terms which would enable the court to fashion conditions which would enhance the protection and the safety of the community and perhaps enhance the treatment program that a mentally unfit accused person might need in order to be properly cared for. That is, I think, the first deficiency.
The second deficiency is, as counsel for the State has pointed out, if I were to make a custody order there is no declared place to which Mr Tax could be taken and, because he does not suffer an illness, he could not be placed in a hospital. So, the effect of making a custody order is that Mr Tax would be imprisoned indefinitely. My only choices are between an unconditional release and indefinite imprisonment without significant prospect of treatment of the conditions which have made Mr Tax unfit to plead or which might have precipitated the offending which the State alleges. That, it seems to me, is an unsatisfactory situation and does not provide the court with the range of remedies that the court should have to deal with complex and multifaceted situations such as this. Nevertheless, I must do the best I can in those circumstances.
On the question of whether or not there should be an unconditional release or a custody order, I have received a volume of material which has been diligently prepared and compiled by those representing Mr Tax. I am very grateful to them for the effort that they have put into the investigation of this case and the compilation of the evidentiary materials that have been presented to the court. I will briefly run through those materials.
I have received a letter from Mr Kopp who is the acting chairperson of the Mulan Aboriginal community, and that is the community at which Mr Tax resides. He advises that Mr Tax is one of the workers in the CDEP program that he supervises, that he has known him a long time, that everybody in the community is keeping an eye on him and that Mr Kopp will continue to keep an eye on him and watch out for him.
I have also received a letter from Mr Yoomarie who is the chairman of the Mulan Aboriginal Corporation. He advises the court, I am told on behalf of the council of the community, that the community has no concerns with Mr Tax's continued presence in the community and he advises also that Mr Tax has joined the work team and will be an active participant in the CDEP program.
I have also received a letter from the Palyalatju Maparna Health Committee. They advise that they provide services to the communities surrounding Balgo, including Mulan. There is a men's program coordinator who provides services in addition to a local service provided by a Mr Bede Lee. Mr Lee is Mr Tax's uncle, and Mr Lee would be available to provide counselling and support to Mr Tax in the event that a release order is made.
I have also received a letter from the principal of the Catholic school in Mulan who advises that after being notified of Mr Tax's charges he met with the staff of the school. He has reported to me the various protective strategies which the school has in place in order to protect the children in that school. It seems that there is a regime in place that would be of assistance in protecting the children from any risk of repetition of the sort of behaviour that is indicated by the second charge although I note again the State's concession that there is not a strong case in relation to that charge.
Mr Phillips, who is a mental health professional employed by the Kimberley Mental Health and Drug Service, has indicated that he would be prepared to assess Mr Tax on his next visit to Mulan and provide an assessment of whether further treatment would be of assistance to Mr Tax. Again I think that is a very positive step.
Ms Wendy Burns from the Department of Community Development advises me that the Department for Child Protection does take steps and will monitor the situation in Mulan and do its best to ensure that there are protective behaviours in place in that community to protect children in that community from possible predatory behaviour, including possible behaviour by Mr Tax.
I have also received a letter containing material provided by Mr Tax's biological mother and her two sisters, who Mr Tax also regards as his mothers. They are the people with whom Mr Tax lives and who take responsibility for supervising his behaviour. Philippa Tax is the main one looking after Mr Tax, but the family act and work together and the support of these three women for Mr Tax is evident from their attendance in court this morning.
Mr Tax also receives support from Johnny Gordon, Mr Tax's uncle who sometimes works with Mr Tax. He is in Derby at the moment but he may return to Mulan and he provides possible support for Mr Tax. The three mothers of Mr Tax also advise me that the community is structured in such a way and they supervise Mr Tax to ensure that he does not play with the little kids any more. The community is aware of the general nature of the charges that have been brought, so steps are also in place within the community to make sure that children do not come near Mr Tax.
So the situation is that there are positive signs of steps that might be taken, albeit of a limited nature, given the limited range of services available in remote communities like Mulan. There are some positive steps on the horizon and the community has itself taken steps to minimise the prospect of any significant reoffending behaviour. Of course, as I have already indicated, under the Act there is nothing I can do to impose conditions that would improve the likelihood of those positive steps continuing indefinitely. I have to take on faith the proposition that those steps will remain in place. As I have already indicated, that seems to me to be something of a deficiency in this legislation.
I am presented with two stark alternatives, either indefinite imprisonment on the one hand, or, on the other, the maintenance of a situation in which whatever can be done, despite the limitations imposed by the limited range of services available in Mulan, is being done to assist Mr Tax to live within the community and hopefully live a positive and constructive life.
It seems to me that the public interest, having regard to the other factors mentioned by s 19(5), that is, Mr Tax's character, antecedents, age and health and mental condition, all strongly favour the making of a release order and so I will make orders quashing the indictment in the case of the first count, dismissing the charge and quashing the committal in the case of the second count, and releasing Mr Tax under s 19(4).