R v The Queen
[2018] NZHC 978
•8 May 2018
ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF
ACCUSED/DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2008-090-009921 [2018] NZHC 978
THE QUEEN v
R
Hearing: 21 March 2018 Appearances:
B Dickey for the Crown
D Niven and P Winter for the Defendant
Judgment:
8 May 2018
JUDGMENT OF WOOLFORD J
[On determination of involvement in offence and fitness to stand trial under ss 9 and 14 of the Criminal Procedure (Mentally Impaired Persons) Act 2003]
This judgment was delivered by me on Tuesday, 8 May 2018 at 11:00 am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors: Meredith Connell (Office of the Crown Solicitor), Auckland Counsel: Mr D Niven, Auckland
R v R [2018] NZHC 978 [8 May 2018]
Introduction
[1] R is charged with murdering her sister on or about 9 October 2008. Prior to trial last September, the issue of R’s fitness to stand trial arose. The trial was adjourned. R is now before the Court for a determination of her involvement in the offence, pursuant to s 9 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Act), and, if she is involved in the offence, her fitness to stand trial under s 14 of the Act.
[2] The prosecution has a protracted history and R has been made the subject of many health assessors’ reports.
[3] Reports on the issue of R’s fitness to stand trial have been provided for this hearing by a psychiatrist, Dr Ian Goodwin, and a clinical psychologist, Ms Sabine Visser, both of whom were instructed by the defence and a second psychiatrist, Dr Peter Dean, instructed by the Crown.
Section 9
[4]Section 9 of the Act provides:
9 Court must be satisfied of defendant's involvement in offence
A court may not make a finding as to whether a defendant is unfit to stand trial unless the court is satisfied, on the balance of probabilities, that the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged.
[5] It has been agreed by the parties that the Court may proceed on the basis of the depositions evidence on which R was committed for trial in the High Court on the charge of murder. Given this offending precedes the Criminal Procedure Act 2011, I am of the view that this satisfies the inquiry before trial on “any other evidence that is submitted by the prosecutor or the defendant”.1 I therefore find and formally record, pursuant to s 13(1) of the Act, that the evidence against R is sufficient to establish that she caused the act or omission that forms the basis of the offence of murder with which
1 Criminal Procedure (Mentally Impaired Persons) Act 2013, s 10(3)(c).
she is charged. Being satisfied of the matters specified in s 9, I must now proceed to determine the matters specified in s 14 of the Act.
Section 14
[6]Section 14 of the Act provides:
14 Determining if defendant unfit to stand trial
(1)If the court records a finding of the kind specified in section 13(4), the court must receive the evidence of 2 health assessors as to whether the defendant is mentally impaired.
(2)If the court is satisfied on the evidence given under subsection (1) that the defendant is mentally impaired, the court must record a finding to that effect and—
(a)give each party an opportunity to be heard and to present evidence as to whether the defendant is unfit to stand trial; and
(b)find whether or not the defendant is unfit to stand trial; and
(c)record the finding made under paragraph (b).
(3)The standard of proof required for a finding under subsection (2) is the balance of probabilities.
(4)If the court records a finding under subsection (2) that the defendant is fit to stand trial, the court must continue the proceedings.
Mental impairment
[7] The scheme of the Act is such that if a defendant is not mentally impaired in terms of s 14, he or she is deemed fit to stand trial and the proceeding must continue. If the court finds that mental impairment in terms of s 14 exists, then the court must determine whether the level of mental impairment is such that the defendant is unfit to stand trial.
[8] The Act does not contain a definition of mental impairment in terms of s 14. It is clear, however, that the forms of impairment included within s 14 extend beyond those captured by the term “mental disorder” in the Mental Health (Compulsory Assessment and Treatment) Act 1992, and the term “intellectual disability” in the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 and may include other mental impairments that would not fall within either of those two statutory definitions.
[9]In R v TPH, Kós J held that:2
…The focus of the undefined term should be on whether the defendant has a condition that impairs mental function to the extent it may seriously affect the defendant's ability to comprehend charges, consider options and consequences, plead, or mount a defence.
I agree with that approach.
[10] The Court has the benefit of the opinions of two experienced psychiatrists. Dr Goodwin authored two reports dated 25 August 2017 and 19 October 2017 following three separate interviews with R. He states:
[R] presents with constellation of impairments and diagnoses. She has been diagnosed as suffering from intellectual disability and impaired cognition, as well as psychosis NOS [not otherwise specified] and borderline personality disorder. While the diagnosis of intellectual disability has been challenged recently, I am firmly of the opinion that [R] does fulfil the criteria for Intellectual Disability as outlined within s 7 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2013.
[R] is seen as Mentally Disordered within the meaning of Sections 2 and 4 of the Mental Health (Compulsory Assessment and Treatment) Act 1992. She is currently subject to a Compulsory Treatment Order pursuant to that Act.
The court would normally see [R’s] combination of illness and cognitive impairments as constituting mental impairment.
[11] Dr Dean concurred with Dr Goodwin that R is likely mentally impaired following one interview with R. In his report dated 9 November 2017, he states:
[R] has been assessed as having a complex array of psychiatric and physical conditions which impact on her cognition, communication and behaviour. These conditions have been well articulated in the various reports provided to the court. On cognitive testing, [R] has been assessed as having an IQ within the mild intellectual disability range. Formal testing is complex to interpret because of her language, culture, psychiatric condition and hearing deficits. It has been suggested her adaptive functioning is superior to that expected in those with intellectual disability. This is also complex to interpret for the same reasons and as a result of her prolonged institutional care. It is probable that her intellectual function has been under-estimated and her adaptive functioning over-estimated. However, regardless of the cause, she has impairments in comprehension, memory and expression. She can be suggestible, overly compliant and concrete in her thinking. She struggles with abstract concepts. She has an impaired theory of mind, being unable to view the world from another perspective, particularly in the context of competing and inconsistent circumstances. Although there has been a doubt cast on a
2 R v H [2014] NZHC 1423 at [9].
diagnosis of intellectual disability for the purpose of the IDDCR Act 2003, it does not appear this diagnosis has been rejected by any of the previous assessors.
[R] has been given a diagnosis of borderline personality disorder and post-traumatic stress disorder. I am not clear she is suffering from specific symptoms of PTSD at this time, although the two conditions are often associated and closely linked. Borderline personality disorder often arises in the context of developmental disadvantage and emotional trauma. Borderline personality disorder is characterised by emotional dysregulation, episodes of self-destructive and self-harming behaviour, interpersonal dysfunction and a tendency to view the world in idolised or demonised alternating lenses. These features become more evident during periods of psychosocial stress.
[R] has also been diagnosed with psychosis not otherwise specified. This has variously been described with a diagnosis of schizophrenia predominating. She has received antipsychotic medication, which appears to have improved the symptoms. Being specific about the diagnosis is difficult due to her other conditions. Auditory hallucinations and other psychotic features can be symptomatic of disassociation from PTSD or brief psychoses associated with borderline personality disorder. [R] is also susceptible to suggestion which may complicate her reporting of symptoms. However her treating clinicians believe she has a psychotic illness, which can exacerbate her impairments if untreated. This condition appears to have been stable for some time.
[R] has congenital hyperphosphatasia. It is likely this condition has contributed to her deafness, intellectual impairment, short stature and risk of repeated bone fractures.
[R] has an abnormal state of mind characterised by disorder of mind, disorder of cognition, disorder of perception and disorder of volition. As a consequence of her abnormal state of mind she has posed a serious risk to herself and others. It is therefore my opinion she is mentally disordered as to defined by s 2 of the Mental Health (Compulsory Assessment and Treatment) Act 1992. Indeed, she remains subject to this Act on an inpatient compulsory treatment order.
…
In my opinion the combination of her cognitive difficulties, personality disorder and psychotic symptoms, the court is likely to accept (and indeed has accepted in the past) she is mentally impaired for the purposes of the Criminal Procedure (Mentally Impaired Persons) Act 2003.
[12] Again, the parties have agreed that R is mentally impaired. I therefore find and formally record that R is mentally impaired in terms of s 14 of the Act. The sole remaining question is, therefore, whether she is fit to stand trial.
Fitness to stand trial
[13]Section 4 of the Act defines the term “unfit to stand trial” as follows:
(1)In this Act, unless the context otherwise requires,
…
Unfit to stand trial, in relation a defendant,
(a)means a defendant who is unable, due to mental impairment, to conduct a defence or to instruct counsel to do so; and
(b)includes a defendant who, due to mental impairment, is unable
(i) to plead:
(ii) to adequately understand the nature or purpose or possible consequences of the proceedings:
(iii) to communicate adequately with counsel for the purposes of conducting a defence
[14] This definition sets out as examples factors which will result in a finding that the defendant is unfit to stand trial. The criteria are, however, not prescriptive. A court therefore has the ability to take into account other factors which have not been specifically listed in the legislation.
[15] In assessing fitness to plead, reference is sometimes made to the list of incapacities identified by Smith J in R v Presser;3 later approved by the High Court of Australia in R v Ngatayi.4 These are whether the defendant was capable of:
(a)understanding what it is that he or she has been charged with;
(b)pleading to the charge and exercising his or her right of challenge;
(c)understanding that the proceedings before the court would be an inquiry as to whether or not he or she did what he or she was charged with;
(d)following, in general terms, the course of the proceeding before the court;
(e)understanding the substantial effect of any evidence given against him or her;
(f)making a defence to, or answering, the charge;
3 R v Presser [1958] VR 45 (SC) at 48.
4 R v Ngatayi (1980) 147 CLR 1 at 8.
(g)deciding what defence he or she would rely on;
(h)giving instructions to his or her legal representative (if any); and
(i)making his or her version of facts known to the court and to his or her legal representative, if any.
[16] The Court of Appeal said in Solicitor-General v Dougherty that there was merit in these factors and that they provide useful guidance to health assessors.5 However, as the Court said, the factors are not the test. The test is set out in s 4 of the Act.
[17] Fitness to plead is the sole issue for determination, but before discussing that issue, it is useful to review the prosecution history.
Prosecution history
[18] R was initially charged with her sister’s murder on 13 October 2008. It is unnecessary to record in detail the many and varied developments in the prosecution since then because the inquiry is whether R is fit to stand trial at present. Some background is useful, however. On 25 May 2010, R was first found unfit to stand trial. On 29 June 2010, an order was made detaining her as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act. In January 2012, the Director of Area Mental Health directed that R’s status be changed to special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act and, on 10 January 2012, she was transferred from the Mason Clinic in Auckland to the Haumietiketike Unit in Porirua.
[19] On 3 September 2015, the Attorney-General directed that R be brought before the appropriate court as a certificate had been given under the Intellectual Disability (Compulsory Care and Rehabilitation) Act to the effect that she was no longer unfit to stand trial.
5 Solicitor-General v Dougherty [2012] NZCA 405, [2012] 3 NZLR 586 at [57].
[20] In making his direction, the Attorney-General relied on reports from a clinical psychologist, Dr Duncan Thomson, and a psychiatrist, Dr Nick Judson. In his report dated 4 September 2014, Dr Thomson reviewed the Presser criteria. The most problematic for Dr Thomson was the ability of R to follow, in general terms, the course of a proceeding before the court and give instructions to her legal representative. Dr Thomson said that this area would be the most challenging for R, her counsel and the Court. Simply put, R has limited verbal abilities and a tendency to misinterpret questions put to her. For the process to be fair, R would require a support person who knew her well. Dr Thomson was of the opinion that R would be unable to follow all aspects of the trial as it occurred, but that did not matter. Dr Thomson commented that as long as a defendant could follow in general terms the course of proceedings, as opposed to being able to understand everything that is said, they were approaching an adequate level of competency. Dr Thomson went on to state:
[R] has number of traits of borderline personality disorder, a condition characterised by affective instability that, in [R], results in significantly disturbed behaviour including quite alarming self-harm at times. This presents the possibility that [R] will, at times, struggle to cope with the demands of the trial.
…
The question of fitness ultimately lies with the court and the criteria for fitness clearly allows the court considerable latitude in considering multiple factors relevant to someone’s competency. My opinion is that the above data suggests
[R] is fit to stand trial although steps will need to be taken to mitigate the effects of her disability.
[21] In his report dated 28 October 2014, Dr Judson was a little more hesitant. Dr Judson said that there could be no question that R’s understanding and ability to deal with the issues pertaining to the court was much improved from the situation when she was first made a special patient and then a special care recipient. He concurred with Dr Thomson in questioning her ability to follow events in court and providing adequate instructions in the face of accumulating evidence or developments that may occur in the evidence as a trial progresses. He stated:
I am aware that in this case the assessment is being undertaken without the ability to refer in any depth to the actual evidence gathered by the police in respect of the charges. Although her own account is clear and unambiguous, there is some uncertainty about to what extent [R] has the capacity to respond realistically to whatever evidence may support the police allegations. When undertaking an assessment of fitness in cases in which there is some degree of
uncertainty, it is useful to examine the patient after they have had the opportunity to engage in at least a preliminary discussion with their lawyer, in which there is the opportunity to critically assess the range of evidence that supports the police case and what defence may be possible. Examination after such a discussion enables the assessor to gauge to what extent the accused is able to appreciate the nature and strength of the evidence, to respond to this and to engage in the process in the real legal situation. Sometimes, when there is uncertainty, it is necessary to continue with the legal process and to test the understanding of the accused as the process unfolds before making a final call.
Given the importance of this decision, particularly after such a complex legal course to date, it is important that any decision about fitness is made only with the best information available, as the option of proceeding and reassessing her capacity as events unfold is not realistic at this stage. If it is at all possible she should now be supported to engage a lawyer who is able to examine the police evidence and to engage in some preliminary discussions with her. Her demonstrated ability to manage this part of the process would prove a higher degree of certainty to support her return to court.
In summary, on the basis of my examination of the patient and reading of the clinical and legal material, I concur with Mr Thompson’s assessment that at this stage [R] appears to have recovered sufficient competence to be considered fit to stand trial. The only proviso to this is that it would be preferable, if possible, to confirm her comprehension and ability to respond to the full disclosure of evidence through an appointed lawyer, prior to the matter being referred back to the court for determination.
[22] R was next in court on 26 November 2015. Attempts to assess R’s fitness to stand trial were delayed as a consequence of R’s frequent hospitalisation, resulting primarily from deliberate self-harm. This took the form of head banging, ingestion or insertion of foreign objects (including one of her hearing aids and also batteries) and self-strangulation. A hearing as to R’s fitness to plead was eventually held in the Waitakere District Court on 16 May 2016. Judge L Tremewan had the benefit of reports from two further psychiatrists, Dr Kyros Karayiannis and Dr Mhairi Duff. The psychiatrists did not give oral evidence, nor were they cross-examined.
[23] Judge Tremewan noted that, in summary, the weight of the recommendations as carefully articulated in the reports was that on balance R was currently fit to stand trial (albeit with considerable reservations and noting that accommodations would need to be made to assist R with any subsequent proceedings). The Court was persuaded that the recommendations were appropriate and, accordingly, made a finding, pursuant to s 14 of the Criminal Procedure (Mentally Impaired Persons) Act, that R was, at that time, fit to stand trial. The Judge commented that while the matter was finely balanced, the weight of the health of assessors’ reports outlined a proper
basis for such a finding. However, the Judge made it clear that the finding was subject to suitable accommodations being made to ensure the adequate participation and communication with R in regard to any subsequent proceedings. To assist, she made a direction pursuant to s 80 of the Evidence Act 2006 that there be a formal communication assessment made available in 28 days to provide assistance with approaches which could be adopted by the court to accommodate R’s relevant needs. The Judge noted it was also obvious that she would need to have a functional hearing aid and possibly also an Arabic interpreter.
[24] In his report dated 20 January 2016, Dr Karayiannis also reviewed the Presser criteria. Dr Karayiannis had concerns about R’s ability to follow the course of a trial and deal with complex evidence, but was of the opinion that R had the ability to communicate with her counsel for the purpose of answering the charges. He did have some concerns that her inflexible style of thinking may impair her ability to fully appraise any complex information. On the balance of probabilities, Dr Karayiannis was of the opinion that R was likely to be found fit to stand trial. He stated, however:
However, given this opinion, I would also respectfully make the court aware that [R] has a degree of emotional and intellectual impairment leading to difficulties with information processing. Consequently R may demonstrate some difficulty with more sophisticated cognitive skills needed in tolerating more complicated evidence and may be easily fatigued and distressed by a lengthy court process. This may progress to emotional dysregulation and potential self-injurious behaviours. I would like to make the court cognisant of [R’s] difficulties so it may take this into account during the proceedings and give consideration to providing her with some special assistance. This may include, making extra effort to ensure that [R] is able to understand the proceedings and allowing her time to consult with Counsel, scheduling in extra breaks and proving [R] with written information if that is able to be done.
[25] In her report dated 17 March 2016, Dr Duff did not offer an opinion on the likely determination of the court, preferring to state in a neutral manner that the question of fitness to stand trial was in the borderline range and that it was for the court to decide whether R was fit to stand trial. She stated:
As extensively discussed in the body of this report I am of the opinion that the court is likely to consider that R does suffer from a mental impairment. The question of her fitness to stand trial lies in the borderline range. R has good basic understanding and skills and at a superficial level she is able to plead, to understand the nature, purpose and possible consequences of the proceedings and to instruct legal counsel in her defence. In some aspects she shows a superior understanding of the issues for example in the necessity to offer a
defence of coercion in relation to admitting involvement. There are a number of more sophisticated levels of concern however that have been fairly consistently noted by the extensive range of previous report writers. In addition [R] appears to have demonstrated a poor capacity to consider alternative pleas specifically to consider a potential plea of [not guilty by reason of insanity]. She has significant verbal skills deficits not simply confined to English as a second language nor to her hearing impairment but rather to the processing of meaning and understanding of abstract concepts. She has rigid and concrete thinking and her ability to flexibly strategise is poor. She continues to show an incongruent and odd affect and to lack insight into how this may appear to others and her ability to competently manage cross examination or process information as it unfolds at trial has yet to be tested but may impact on her competency.
A number of accommodations might be made by the court to support [R] including provision of an Arabic interpreter, use of breaks to allow additional explanations to be provided to [R]. The use of a trusted support person to assist in communication. Support for legal counsel to access visual aids and communication support during pre-trial preparations and encouragement by the court for information to be provided in as simple ways as possible. More complex issues of fair management of cross examination might be considered in the context of considering [R] as a vulnerable witness and specifically assessing appropriate mode of evidence although this would be a relatively unusual step in the case of the defendant being their own vulnerable witness.
It is also noted that [R] strongly feels that she has not been heard by the criminal justice system and the therapeutic importance of her sense of fairness being heard through her achieving her right to trial cannot be dismissed. Although the possibility of the stress of the reality of trial increasing her self injurious behaviour is also real and present and the court may need to consider in advance how acts of self harm may impact on scheduling and procedural management of a trial process should the court consider R fit to stand trial.
Ultimately, and particularly in a high stakes and complex case such as this, it is for the court to decide whether or not [R] is fit to stand trial. If the court arrives at a finding that she is fit to stand trial then the process may continue and the issue of fitness can always be revisited if her competency is exceeded or diminishes over the course of the trial. This allowing of the unfolding of the process, as suggested by Dr Nick Judson may be the only way in which [R’s] level of competency can be fully appraised.
[26] A depositions hearing was then held in the District Court to establish whether or not the evidence sought to be adduced by the Crown was sufficient to place R on trial on the charge of murdering her sister. Following the two day hearing on 12 and 13 December 2016, the Court found that a prima facie case had been established and R was committed for trial in the High Court at Auckland.
[27] Judge Tremewan, who presided at the depositions hearing, dictated a minute to record matters relating to communication arrangements in the hearing. The Judge
recorded that R had been ably assisted in court by Ms Kedge, a communication assistant appointed pursuant to s 80 of the Evidence Act. The pace of the proceedings had been much slower than normal. The Judge was of the opinion that it was unsafe to rely on R nodding or saying she understood in relation to some of the more complex concepts. The provision of a written transcript of evidence was also helpful. Another way in which R had been assisted in terms of her understanding of the case had been through the assistance of counsel for R, as well as an experienced lawyer appointed by the court as amicus curiae, spending time with her in advance to go over issues that were likely to come up in the hearing.
[28] The Judge noted Ms Kedge’s advice that the more abstract a concept was, the more potential difficulty there may be in ensuring R understood the concept. As an example of a potentially problematic topic, she used the topic of consent. The Judge noted that an advantage of the depositions hearing had been that it largely dealt with more concrete concepts than might be the case in the High Court proceedings and thus additional time will likely need to be factored in to accommodate the difficulties which would arise in the High Court.
[29] The Judge recorded that an Arabic interpreter had been available throughout the depositions hearing and his services had been utilised as needed. The Judge also noted that R had been using new hearing aids for the proceedings and these appeared to work well with the infra-red hearing assistance system available in the court-room. The Judge said it would be helpful to have fresh batteries with spares available, but of course, well out of the reach of R who has been known to self-harm using batteries. On that point, the Judge noted that it had been helpful during the proceedings to ensure that R does not have any items which might be used to self-harm within her physical reach. It had also been important to ensure that her chair was pushed in properly up to the table. The Judge noted for the record that she was not in her wheelchair, but walked in and out of court. She was not wearing a hard helmet, but had a soft sporting helmet on. She was not restrained to her chair or indeed in any form as she had been during a previous occasion in court, that step having been taken in an endeavour to prevent attempts at self-harm. Finally, the Judge noted that R’s medications appeared to be working well during the course of the proceedings.
[30] Following committal on 13 December 2016 to the High Court for trial, the defence obtained two further reports from a psychiatrist, Dr Grant Galpin. The first report, dated 14 March 2017, examined R’s fitness to stand trial. The second report, dated 8 May 2017, looked in detail at the availability of a plea of not guilty by reason of insanity. In his first report dated 14 March 2017, Dr Galpin professed the opinion that R came close to the threshold of being found unfit to stand trial. He stated:
It is therefore my overall conclusion having regard to section 4 of the act and some of the case law arising, that [R], who has been found by the court to not be ‘unfit to stand trial’ and for whom a trial is being scheduled, comes close to the threshold of being found unfit to stand trial. Whether or not, and when she crosses this threshold are determinations that rest with the court. Whilst I note that to some extent it is considered that her difficulties in terms of engaging in court processes, should they emerge, could be volitional, given her problems with adapting to changes in court processes as they arise, dealing with the unexpected, following and understanding adequately court proceedings; the crucial determinant will, in my view, be the extent to which the court is able to compensate for [R’s] unique range of difficulties. Whilst it might be that the court can adapt by utilising relatively short sessions, ensuring, checking and rechecking that she has understood matters, providing her with a range of supports including clinical staff from the Mason Clinic, a communication assistant from the court (speech and language therapist) and court appointed interpreter, as well as ensuring her hearing aids are in situ; it is possible that her court processes will be able to proceed satisfactorily. It is also possible that given the stress of court related processes, of traversing emotive material necessary to defend her charges given her particular set of vulnerabilities; affective dysregulation and superimposed attentional and concentration related difficulties over and above her baseline difficulties will arise, which for a variable and potentially unpredictable length of time, will result in diminishments in her understanding and ability to participate in court related proceedings and decision making. Her ability in such a circumstance to cope with increased complexity of evidence, and associated exacerbations in her significant tendency to misinterpret questions put to her could become problematic. Therefore, I believe that is not unlikely that during the course of the trial decompensations, or apparent decompensations, in [R’s] mental state could emerge, in which case it would be important for the court to actively reconsider the question of whether or not she is unfit to stand trial.
[31] In his second report dated 8 May 2017, Dr Galpin expressed the belief that a defence of insanity could not be sustained. He believed her to be competent to understand the consequences of disclosure to the Police, but her competency to understand the right to silence was finely balanced.
[32] The High Court scheduled a trial commencing on 4 September 2017 with an estimated duration of seven weeks. At callover on 27 April 2017, defence counsel advised the Court that R would challenge certain admissions made by her. The High
Court accordingly allocated a one day pre-trial hearing to determine the admissibility of those statements on 3 August 2017.
[33] On 2 August 2017, counsel advised the High Court that the pre-trial hearing fixture on 3 August 2017 was no longer required as counsel for R had received significantly different instructions from her during recent meetings and on the basis of these changes it was necessary to review both fitness to plead and insanity. The trial scheduled for 4 September 2017 was also vacated on 25 August 2017 on the basis of advice from R’s counsel that an initial assessment from a psychiatrist recently instructed by the defence, Dr Goodwin, indicated that R was, once again, unfit to stand trial. Further time was required by both the defence and the Crown to prepare the necessary reports for the court to review R’s fitness to stand trial. On 29 November 2017 the Court allocated a one day hearing on 21 March 2018 to determine whether R is now unfit to plead.
Discussion
[34] The Crown case relies heavily on R’s admissions to the Police shortly after the discovery of her sister’s body. However, R very soon started to deny responsibility for killing her sister, claiming the original admissions were untrue and had been made under pressure from family members. R’s consistent account from that time was that she had witnessed her brother’s wife stabbing the victim with a knife. She said the motive for the murder was that the victim had an audio recording of her brother’s wife admitting having defrauded an insurance provider of over $20,000 by giving chattels owned by her to friends before calling the Police and claiming they were stolen.
[35] R said that her sister-in-law threatened to kill her brother unless she told the Police she was responsible for killing the victim. R said she and her sister-in-law moved the victim’s body to the garden and poured petrol on it in an attempt to burn it. She said her brother called the Police the next day after telling her they could not keep the body at the house and expressing anger as, at that point, he believed she had killed the victim.
[36] R maintained the same account of the death of her sister in briefings with counsel until a sudden and complete change in July 2017, which she first
communicated to counsel in a letter on 22 July 2017. She has now instructed counsel that she was responsible for her sister’s death, but wished to plead not guilty by reason of insanity.
[37] I think it significant that earlier reports, such as those by Dr Thomson, Dr Judson and Dr Duff, all noted that R had given a consistent, exculpatory account of events and that the authors considered supported a finding of fitness on the ground that R had given a plausible account of events and had expressed a consistent desire to give her account to a court with a view to securing a verdict of not guilty. For example, Dr Duff stated:
It is also noted that [R] strongly feels that she has not been heard by the criminal justice system and the therapeutic importance of her sense of fairness being heard through her achieving her right to trial cannot be dismissed.
[38] On the other hand, Dr Duff expressed the view that an alternative plea of not guilty by reason of insanity might not be open to her. She stated:
In the current assessment, in keeping with previous assessments I note that [R] has a number of strengths including her grasp of the core nature and purpose of trial and the single defence she has stuck to throughout the time essentially since the events now before the court. Concerns however around her ability to provide information to assessors or counsel about her mental state and psychotic experiences in the period leading up to and following the alleged events remains very poor and her insight into her mental state is very limited. This may prevent [R] from exploring or considering whether an alternative plea of [not guilty by reason of insanity] might be open to her.
[39] Three new reports have been provided to the Court on R’s fitness to plead. Reports were obtained by the defence from a psychiatrist, Dr Goodwin, and a clinical psychologist, Ms Visser, while the Crown obtained a report from another psychiatrist, Dr Dean. All three gave oral evidence and were cross-examined by counsel.
[40] Dr Goodwin concludes that the court is likely to find R unfit to stand trial. Ms Visser also concludes that the court is likely to find R unfit to stand trial. Dr Dean is less clear in offering an opinion, but appears to suggest that R may be found fit on the basis that she is now proposing either a defence of not guilty by reason of insanity or a plea of guilty.
[41] Dr Goodwin concludes that R was unfit to stand trial at the time of his assessment. He was of the opinion that R had only a very basic capacity to plead and that she could not completely comprehend this process:
It is apparent to me that [R] has almost no capacity to retain information consistently, and she does not even have the basic understanding that it is she (not the judge) that decides her plea.
[R] does not, on the basis of this assessment, adequately understand the possible consequences of any plea she might enter, and can only consider potential outcomes with considerable assistance.
[42] Dr Goodwin suggests that R would struggle to communicate adequately with counsel for the purpose of conducting a defence:
Her impairments in communication are profound, and even with the assistance of highly trained professionals, such as Ms Kedge, I had considerable doubts as to whether [R] would be able to communicate adequately with counsel for the purposes of conducting a defence.
[43]Dr Goodwin’s primary concerns relate to R’s cognitive capacity:
The core issue that impacts on [R’s] ability to meaningfully interact with and participate in the proceedings of the court is her cognition. There is clear evidence, from recent testing, that [R] is severely impaired in a number of dimensions of her cognition.
…
It is apparent though that [R] does not retain a great deal – if anything, between interviews and her positions on a number of critical matters are (at best) inconsistent.
In my opinion, this is a reflection of a cognitive impairment and not an unusual finding in the intellectually disabled population. [R] has extreme difficulty in placing events in order, and struggles with simple concepts such as ‘before’ and ‘after’.
[44] Dr Goodwin also indicates that R’s level of compliance could impact her ability to communicate effectively and fairly:
In addition, she has been found to have been overly compliant, which has an impact on how [R] interacts with both counsel and the wider court.
[45]Ms Visser is also of the opinion that R is unfit to stand trial:
The combination of these difficulties in my opinion will lead to [R] being unfit and it is highly unlikely that she will achieve fitness in the future as the stress
and anxiety of a trial will in turn lead to destabilisation and then a reduction in her already poor cognition.
[46]Ms Visser emphasised the combined impact of R’s various conditions:
One of these issues will create difficulties with fitness but a combination of these creates significant difficulties with fitness. The nature for instance of the Borderline Personality will lead to emotional dysregulation when stressed and lead to a further reduction in cognitive ability. [R’s] cognitive abilities are already significantly impaired and the addition for instance of anxiety and then emotional dysregulation will lead to further reduction in cognition and in [R’s] case will lead to her being unfit to stand trial The attendance at trial will
deal with the murder of her sister which may also trigger symptoms of PTSD which will then reduce her cognitive abilities and may lead to disassociation. The difficulties with [R’s] memory will create significant difficulties to participate meaningfully in a trial.
[47] Dr Dean does not provide a conclusive opinion on R’s fitness to stand trial as he recognises that the ultimate decision is a matter for judicial assessment. He indicates that R’s capacity to stand trial can only be truly assessed at trial, and would require significant assistance from the court:
[R’s] fitness is finely balanced and complex even with the assistance of a communication assistant. … I do not believe her condition has substantially changed since the court determined she was fit to stand trial. Indeed, the areas of most vulnerability can only be genuinely tested during the course of trial by careful evaluation of her understanding and ability to communicate her decisions.
[48] Dr Dean was of the view that R understood the nature of the charge she faces and would be able to enter a plea:
[R] clearly understood she was facing a charge of murder. She understood she had been accused of committing the act. She knew the victim, how the victim died in the context of the allegations.
…
[R] understood she could enter guilty, not guilty and not guilty by reason of insanity pleas. She was able to indicate the plea she intended to make. … I did not directly address the issue of challenging jurors, as most defendants rely on legal counsel to manage this function. However, it would be likely she would struggle with the concept.
[49] Dr Dean is of the opinion that R is capable of instructing counsel, albeit with significant assistance:
I understand receiving instruction from [R] has been complex and required significant assistance from her communications assistant. Simplifying legal concepts is difficult. However, [R] has been able to give a version of events to her counsel and able to indicate a plea she wishes to make.
…
[R] has given her version of events, although this has changed. She has been clear in her description in the past and has reconsidered her options.
[50] Finally, Dr Dean acknowledged that significant provisions would need to be implemented in order for R to be able to stand trial fairly:
As noted by previous assessors, she is very suggestible and giving evidence in court will be challenging. The fact finder would need a clear understanding of her difficulties to assist them to understand her reactions and responses. It is difficult to know whether the court is able to accommodate these difficulties, even with the use of a communication assistant.
[51] When Judge Tremewan ruled on 26 May 2016 that R was fit to stand trial she commented that the matter was “finely balanced”, but that the weight of the reports from Dr Karayiannis and Dr Duff outlined a proper basis for such a finding.
[52] I am of the view, however, that the balance has now changed and the weight of the reports from Dr Goodwin, Ms Visser and Dr Dean now support a finding that R is unfit to stand trial.
[53] There have been numerous reports looking at the issue of R’s fitness. Dr Goodwin notes that a number of these reports have described her as fit, but under quite remarkable conditions, including having a communication assistant, multiple breaks and also being regularly reassessed during any trial process for continuing fitness to stand trial. Dr Goodwin says he could not find one report that states that R is clearly fit to stand trial without considerable concessions and assistance. Dr Goodwin’s position is that these concessions will not be enough. Dr Dean’s position, as summarised by Crown counsel, is that those concessions might be enough, but he would not judge it quite yet.
[54] Although in his report dated 9 November 2017, Dr Dean described Dr Goodwin’s opinion as “an outlying assessment” compared to the careful consideration of all the previous assessors, in evidence before the court, Dr Dean said
that there were more similarities than differences between his position and that of Dr Goodwin.
[55] Dr Dean acknowledged a level of uncertainty in his mind as to whether R was actually fit and accepted that what he was essentially saying was to test that further by letting the process unfold.
[56] However, Dr Dean was able to foresee what would happen with some degree of clarity. The following cross-examination of Dr Dean is instructive:
Q. But I take it from your evidence that you’ve still got some significant reservations about whether she would be able to properly engage in a contested trial?
A. Indeed, yes.
Q.So if it went to a contested trial you’d support that she’d be likely unfit at some stage?
A.I’ve got reservations about her fitness depending on the information that’s there and depending on the complexity.
Q.Now, we’ve also heard evidence that as the trial approaches the opinion is that she’s likely to decompensate?
A. Yes.
THE COURT
Q. How would you define decompensate, Doctor?
A. She is more likely to display symptoms of her psychiatric condition which might include, as we discussed, emotional dysregulation, so irritability, low mood, worsening hallucinations and there’s certainly a very long history of self-harm behaviour, even with support.
DEFENCE COUNSEL
Q.So, again, as we draw near trial or as we enter a trial the risk for example of the type of self-harm behaviour that she’s engaged in in the past would increase?
A. Absolutely, yes.
Q.And would you consider that such decompensation would be, or some level of decompensation would be inevitable?
A. Highly likely. I can say inevitable.
Q.That’s fine, I’m happy with highly likely. Now, again, would you accept that as her, or if her condition deteriorated and she decompensated, her cognitive abilities would decline?
A.Her ability to attend and concentrate on matters would certainly be more likely to be more impaired.
[57] Dr Dean also acknowledged the effect of sedation medication in the following exchange with counsel:
Q. Now, again, would being on a sedation medication in the course of a hearing likely affect her ability to interact with a lawyer during the course of a hearing?
A. A difficult question because yes it may impact on thinking and cognition, but also relax and reduce emotional dysregulation, so sort of a bit of one and a bit of the other.
Q. But it’s a fine line we’re walking at the very least isn’t it?
A. Absolutely, yes.
Q.And again it’s also likely to have impact upon her understanding of the proceedings isn’t it?
A. Yes, both ways.
[58] At the hearing on 21 March 2018 I was also given R’s clinical notes for the previous three days. They record that R was seen by Dr Goodwin at 12.45 pm on 19 March 2018 about the upcoming hearing and what may happen. After Dr Goodwin left, she shouted loudly, threw a cup smashing it into a wall and shouted that she needed to die. She punched a fire hydrant door, damaging it. She was physically restrained by staff while another staff member administered a sedative. R tried to bang her head while on the floor and so a cushioned mat was placed under her. R told staff that Dr Goodwin had told her one thing and her lawyer was saying something else. She said it was just overwhelming for her to process, so she decided to lash out and cause a commotion just to relieve the additional pressure that had been placed on her.
[59] The clinical notes from the next day, 20 March 2018, record R telling staff that there was an increased risk of her becoming angry and agitated as her lawyer was coming to see her at 3.00 pm. It was also recorded that R needed to hand back her razor prior to her lawyer coming and that R had agreed that before her meeting with him she would be given PRN medication to reduce her risk of hurting herself or others.
The notes record her insight in mentioning to staff that she may become angry and lash out if she was questioned about the lead up and her index offence.
[60] When she appeared before me at the fitness hearing on the next day, 21 March 2018, R had been given medication to sedate her 15 minutes before court. She had other medication prior to arriving at the court. Her chair was pushed in properly up to the table as recommended by the Judge who presided at R’s depositions hearing. She was not restrained to her chair as she had been during a previous occasion in court, nor did she wear a soft sporting helmet as she had during the depositions hearing. There were no items within her physical reach which might be used for self-harm. There were also two staff members from the Mason Clinic in close proximity to R who kept a very close eye on her and who were ready to physically intervene if R became a danger to herself or others.
[61] I do not think it is particularly useful for me to review the individual Presser criteria in detail to determine whether R is fit to stand trial. It is my role to stand back and make a judgment based on all the reports and the evidence I heard. R’s case is complex. Her behaviour is not motivated by a desire to escape justice. Previous clinicians in fact thought it desirable for therapeutic reasons for R to have her day in court. Others have said that the criminal process should be allowed to continue in order to see what will happen.
[62] I have, however, reached the view that R will decompensate in a contested trial. Dr Dean thinks that it is inevitable. There is also an increased risk of self-harm. Dr Dean agrees saying “Absolutely, yes”.
[63] In the end for the reasons articulated by Dr Goodwin, I have concluded that R is unfit to stand trial. R has a number of complex conditions that all contribute to the overall finding of unfitness. The first issue is around language and communication. English is not R’s first language. She has significant deafness and requires customised hearing aids. She also requires the assistance of a highly trained communication assistant.
[64] The second issue, which is probably the most significant, is R’s cognition, particularly her capacity to process information, her short-term memory and her learning, which appear to be significantly impaired on the basis of psychological testing.
[65] The third issue is the diagnosis of a psychotic illness that appears to fluctuate somewhat, but is, at times, under control and at other times, not.
[66] The fourth issue is the diagnosis of borderline personality disorder, which does contribute significantly to fluctuations in R’s presentation, but also leads to emotional dysregulation which, again, bears on fitness to plead.
[67] I am, therefore, of the view that with all these issues it is more likely than not that R will not be able to follow the court processes with a sufficient degree of understanding to make it fair. Nor will she be able to process information adequately in order to instruct counsel. The radical change of instructions last year is not based on any advice from counsel nor on an analysis of the evidence against her and the strength or otherwise of the Crown case. As defence counsel submits it may be that the charge was due to undue external influence by the family exacerbated by her very high level of compliance or the internal workings of her mind, representing either cognitively impaired or psychotically driven thought processes.
[68] I therefore record in terms of s 14(2)(b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 that R is unfit to stand trial. I remand R to the Mason Clinic for inquiries to be made to determine the most suitable method of dealing with her under ss 24 or 25 of the Act. I request that a report, which can be relatively short given R’s extensive history and numerous prior assessments, be made available for callover on Wednesday, 16 May 2018.
Woolford J
0
3
1