The State of Western Australia v Tonkinson
[2020] WADC 160
•16 DECEMBER 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- TONKINSON [2020] WADC 160
CORAM: PRIOR DCJ
HEARD: 15 OCTOBER 2020
DELIVERED : 16 DECEMBER 2020
FILE NO/S: IND 704 of 2020
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
ROBERT TONKINSON
Catchwords:
Criminal law - Criminal procedure - Fitness to stand trial - Turns on own facts
Legislation:
Criminal Code (WA), s 321(4)
Criminal Law (Mentally Impaired Accused) Act 1996 (WA), s 3, s 8, s 9, s 10, s 12, s 19
Result:
Accused declared mentally unfit to stand trial
Representation:
Counsel:
| Applicant | : | Mr B Stanwix |
| Accused | : | Mr S Rafferty |
Solicitors:
| Applicant | : | State Director of Public Prosecutions |
| Accused | : | Seamus Rafferty & Associates |
Case(s) referred to in decision(s):
Craig v The Queen [2018] HCA 13; (2018) 264 CLR 202
Jeffery v The State of Western Australia [2018] WASCA 219
R v Dunne [2001] WASC 263
R v Presser [1958] VR 45; [1958] ALR 248
The State of Western Australia v Huggins [2017] WASC 243
PRIOR DCJ:
Background
The accused Robert Tonkinson is charged on indictment 704 of 2020 dated 23 June 2020 with one offence of indecent dealing with a child of or over the age of 13 years and under the age of 16 years by touching the child's penis (the indictment).
The offence is alleged to have occurred on 24 December 2018 at Mr Tonkinson's house in Nedlands. The child complainant was 13 years old at the time of the offence. Mr Tonkinson was 79 years of age and a close friend of the child complainant's family.
The particulars of the offence alleged is that the child complainant and his family attended Mr Tonkinson's home on 24 December 2018 for a Christmas celebration. The child complainant was sitting on a couch in the lounge room. After dinner Mr Tonkinson sat on the couch next to the child complainant, put his arm around the child complainant and started to tickle him. Mr Tonkinson then put his hand inside the child complainant's pants and underwear and grabbed the child complainant's penis. Mr Tonkinson then masturbated the child complainant's penis.
Mr Tonkinson has been the subject of bail which includes protective conditions relating to the child complainant since 2 August 2019 when he was charged with the alleged offence.
Mr Tonkinson was diagnosed with dementia due to Alzheimer's disease in February 2018. He is 81 years of age. His date of birth is 12 September 1939.
The matter was listed for a hearing on 15 October 2020 before me to determine whether Mr Tonkinson was mentally fit to stand trial for the charge listed on the indictment. The relevant legislation that applies to this application is the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (the Act). The procedure for an application of this type is summarised by Hall J in The State of Western Australia v Huggins.[1] The tests contained within s 9 of the Act were noted by Miller J in R v Dunne[2] as being based on the common law tests as described by Smith J in R v Presser.[3]
[1] The State of Western Australia v Huggins [2017] WASC 243 [4] - [5].
[2] R v Dunne [2001] WASC 263 [10].
[3] R v Presser [1958] VR 45; [1958] ALR 248, 48.
I reserved my decision on this question. After the hearing on 15 October 2020, the State filed supplementary submissions on 4 December 2020.
The evidence provided for the issue to be decided
The evidence which was relied upon by the parties for my determination pursuant to s 9 of the Act was the following:
1.The prosecution brief.
2.The DVD of Mr Tonkinson's record of interview on 9 July 2019 at the Child Abuse Squad offices (the record of interview).
3.A report of Dr Vidovich a neuropsychologist dated 26 October 2019.
4.A report of Dr Hall a forensic psychiatrist dated 28 November 2019.
5.A report of Dr Vidovich dated 22 June 2020.
6.A report of Dr Hall dated 25 June 2020.
7.A letter from Mr S Packham the State Director of Public Prosecutions file manager in this matter to Mr S Rafferty counsel for Mr Tonkinson dated 1 September 2020.
8.A report of Dr Vidovich dated 21 September 2020.
9.A report of Dr Hall dated 6 October 2020.
In addition to the evidence I have referred to above, I also heard testimony from Dr Vidovich and Dr Hall on 15 October 2020. Both of them watched the record of interview during the hearing before me.
Mr Tonkinson was reviewed by Dr Vidovich on 14 October 2019 and 2 September 2020. He was reviewed by Dr Hall on 15 October 2019.
In the reports of Dr Vidovich and Dr Hall, they both concluded that Mr Tonkinson suffers from a mental illness as defined in s 8 of the Act.
Mental illness is included in the definition of a mental impairment in s 8 of the Act. Pursuant to s 9 of the Act, Mr Tonkinson is not mentally fit to stand trial for the offence if, because of the mental impairment, Mr Tonkinson meets any of the eight criteria in s 9(a) - s 9(g) of the Act.
Both Dr Vidovich and Dr Hall were of the opinion in their reports that Mr Tonkinson is not fit to stand trial as he does not have the capacities specified at s 9(e) - s 9(g) of the Act.
Section 9(e) - s 9(g) of the Act state the following:
(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.
Both Dr Vidovich and Dr Hall were of the opinion that Mr Tonkinson's impairment is severe and he would not become fit to stand trial in the next six months.
The parties' positions
Counsel for each party in these proceedings provided written submissions.
Counsel for Mr Tonkinson submits that due to the evidence provided in the reports of Dr Vidovich and Dr Hall, Mr Tonkinson is not mentally fit to stand trial and will not be so within the next six months as he is unable to meet the criteria of s 9(e), s 9(f) and s 9(g) of the Act.
Based on the documentary evidence and the further evidence given by Dr Vidovich and Dr Hall on 15 October 2020, the State accepts in its supplementary submissions dated 4 December 2020 that Mr Tonkinson is not mentally fit to stand trial as he is unable to meet the criteria of s 9(g) of the Act.
Matters not in issue
The following matters are not in issue or agreed by the parties:
1.The trial will take three to four days.
2.The child complainant's evidence will be pre-recorded at a separate hearing before the trial. This pre-recorded evidence will be available to Mr Tonkinson and his counsel to review leading up to his trial.
3.Mr Tonkinson will be represented by counsel at his trial and at the pre-recording of the child complainant's evidence.
4.Alzheimer's disease is a regressive illness. Mr Tonkinson's health condition will not improve and most likely deteriorate more leading up to his trial.
5.The State will not be playing Mr Tonkinson's record of interview on 9 July 2019 as part of the prosecution evidence at his trial, as the State's view is the record of interview is inadmissible due to Mr Tonkinson's mental impairment, he was overborne and therefore his admissions were not voluntary.[4]
6.The trial will not take place for at least another six months.
7.Both Dr Hall and Dr Vidovich are experts who have provided many reports and given evidence on many occasions in relation to the question of fitness to stand trial pursuant to s 9 of the Act.
8.Mr Tonkinson suffers from a mental impairment by way of a mental illness.
9.It is not disputed that if Mr Tonkinson is found unfit to stand trial, he will remain unfit to stand trial for the following six months.
[4] The submissions of the State of Western Australia dated 4 December 2020 at par 20.
The evidence of Dr Hall
Dr Hall gave evidence that Mr Tonkinson had been attending a memory clinic from 2017. In 2017, Dr Bernard administered Folstein's Mini‑Mental State Examination on Mr Tonkinson (the Folstein test). Dr Hall advised this is a screening test that looks at a broad range of cognitive abilities. The test is out of 30.
Dr Hall stated an ordinary person would score 30 out of 30. A score of 23 or below is considered cognitive impairment. Mr Tonkinson scored 28 out of 30 when he was first tested.
On 15 October 2019 Dr Hall administered the test again. Mr Tonkinson scored 23 out of 30. Dr Hall said this score was at the threshold for significant cognitive impairment and indicative of the progression of his diagnosis of Mr Tonkinson.
Dr Hall was of the opinion Mr Tonkinson was not fit to stand trial under s 9(e), s 9(f) and s 9(g) of the Act.
Dr Hall stated in the course of a trial, Mr Tonkinson would only be able to retain information for 5 - 10 minutes. He would also have very little recollection of any evidence given the day before.
Dr Hall advised Mr Tonkinson would need breaks every 5 ‑ 10 minutes during a trial for his counsel to explain the evidence that has been given to ensure that there is not too much loss of the information. After the explanation is given by his counsel Dr Hall advised Mr Tonkinson would retain the memory of the explanation for 5 - 10 minutes.
Dr Hall was of the opinion Mr Tonkinson would not be able to make an evaluation of the quality of the evidence at trial and whether he should give evidence.
Dr Hall was of the opinion that if Mr Tonkinson were to give evidence at his trial, he would not be able to manage his responses and he would be easily led to give responses that were not in his best interest as a direct result of the dementia process.
Dr Hall advised that if the trial did not occur until the second half of 2021, it will be much more difficult than it is at present for Mr Tonkinson to follow the course of a trial, assess the evidence and make a decision around giving evidence.
Dr Hall was of the opinion Mr Tonkinson would not understand the substantial effect of the evidence against him as it unfolds and Mr Tonkinson would not be be able to make a defence or answer to the charge.
Dr Hall said the likelihood of Mr Tonkinson being able to reliably recall the events of December 2018 at trial as 'fairly low'.
By the time the matter goes to trial, Mr Tonkinson will be four years into his diagnosis. Dr Hall was of the opinion Mr Tonkinson would not be able to understand the effect of the evidence against him and to make a proper defence to the charge. He will not be able to draw on his memories of the events of December 2018.
Dr Hall was of the opinion there is a low likelihood that a year from now, under trial conditions, Mr Tonkinson would be able to recall the information he gave in his record of interview on 9 July 2019 to the same degree.
Dr Hall advised Mr Tonkinson would also be vulnerable to suggestibility during cross‑examination and there is a definite risk of him confabulating issues. Mr Tonkinson may confabulate the events the subject of the charge on the indictment with other occasions that were otherwise similar. He would also agree to things which he, in fact, has no memory of in order to mask the absence.
The evidence of Dr Vidovich
Dr Vidovich met with Mr Tonkinson on 14 October 2019 and 2 September 2020.
Dr Vidovich saw there had been a deterioration of Mr Tonkinson's cognitive ability based on the description of Mr Tonkinson's behaviour from his wife to her and Mr Tonkinson's ability to complete the tasks administered by Dr Vidovich in 2019 and 2020.
Mr Tonkinson's deterioration was also reflected in his Folstein test score reducing from 28 to 23 out of 30.
Dr Vidovich was of the opinion there had been progressive cognitive and functional changes to Mr Tonkinson between 2019 and 2020 that suggested the pathological process had continued and was now affecting other parts of Mr Tonkinson's brain.
Dr Vidovich was of the opinion that within the next 12 months it is highly likely that there will be a more substantial decline and deterioration in Mr Tonkinson from a functional perspective. In 12 months' time, Mr Tonkinson's capacity to formulate language and semantic knowledge will have deteriorated.
Dr Vidovich agreed with Dr Hall that Mr Tonkinson would require breaks every 5 - 10 minutes in the course of a trial to remember anything in detail.
Dr Vidovich was of the view, that from the moment of leaving the room and coming back into court, Mr Tonkinson would have lost all the information his counsel would have given him during the break.
Dr Vidovich advised it is extremely unlikely that if Mr Tonkinson gave evidence, he would be able to remember and conceptualise any of the evidence given earlier during the trial.
Dr Vidovich said it is very unlikely that in 6 - 12 months' time, Mr Tonkinson would have the same memory that he displayed on 9 July 2019 about the events of 24 December 2018. His ability to express and formulate answers around what the memory was will also be impacted by the other progressive elements of the cognitive impairment.
Dr Vidovich expected that if she were to administer the Folstein test on Mr Tonkinson now, his score would be lower than 23. It would be even lower 12 months from now.
Is Mr Tonkinson mentally fit to stand trial?
Having read the submissions from both counsel and in consideration of the evidence referred to in [8] and [9], I am satisfied on the balance of probabilities that Mr Tonkinson is not mentally fit to stand trial, because he is unable to properly defend the charge contained in the indictment. I consider it is more likely than not Mr Tonkinson will not have the capacity in his trial to tell the court his version of what happened if he wishes to give evidence. I also consider Mr Tonkinson does not have the capacity to make a proper election to give evidence. The decision to give evidence would be Mr Tonkinson's alone and not a forensic decision by his counsel.[5]
[5] Jeffery v The State of Western Australia [2018] WASCA 219 [179]; Craig v The Queen [2018] HCA 13; (2018) 264 CLR 202 [24].
On the evidence, I am also satisfied Mr Tonkinson will not be able to meet the criteria of s 9(g) of the Act in the next six months.
Both parties agree that Mr Tonkinson is unable to meet the criteria in s 9(g) of the Act. Notwithstanding the views of both parties, I have independently come to my conclusion in [44] on the evidence before me.
Given my finding in relation to s 9(g) of the Act, it is unnecessary to make findings in respect of s 9(e) and s 9(f) of the Act and whether these two provisions of the Act have been construed incorrectly by the two experts.
If an accused is unable to meet any one of the criteria in s 9 of the Act, he or she will not be mentally fit to stand trial.
I must now determine what orders to make under s 19(1)(a) and s 19(4) of the Act. I will hear from counsel as to whether further evidence and submissions will be required before I resolve this issue.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
Associate to Judge Prior15 DECEMBER 2020
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