Adams, Re [2014] QMHC 2

MENTAL HEALTH COURT CITATION: Re Adams [2014] QMHC 2 PARTIES: REFERENCE BY DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF DONAL CLEVE ADAMS FILE NO/S: No 0145 of 2013 DELIVERED ON: 19 June 2014 DELIVERED AT: Brisbane HEARING DATE: 4 June 2014 JUDGE: Boddice J ASSISTING PSYCHIATRISTS: Dr J Lawrence Dr J J Sundin FINDINGS AND ORDER: 1. In respect of each of the alleged offences the subject of the reference, there is a dispute of fact within the meaning of s 268 of the Mental Health Act 2000 (Qld). 2. In respect of each of the alleged offences the subject of the reference, the defendant is permanently unfit for trial. 3. I shall hear the parties as to the terms of a forensic order and any approved limited community treatment. CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant is charged with six offences of indecent treatment of children under the age of 16, one offence of attempted rape and one offence of unlawful stalking – where there is a dispute of fact within the meaning of s 268 of the Mental Health Act 2000 (Qld) – where the defendant was diagnosed with dementia – where the defendant does not recall details of the offences – where the reporting psychiatrists give differing opinions as to whether the defendant is fit for trial – whether the defendant is fit for trial Criminal Code 1899 (Qld) Mental Health Act 2000 (Qld) R v Presser [1958] VR 45, cited COUNSEL: J Sheridan for the Defendant J Tate for the Director of Mental Health S P Vasta for the Office of the Director of Public Prosecutions (Qld) S Dullaway for the Director of Forensic Disability Services SOLICITORS: Smithfield Law for the Defendant -- 1 of 5 -- 2 Crown Law for the Director of Mental Health Office of the Director of Public Prosecutions (Qld) Crown Law for the Director of Forensic Disability Services [1] BODDICE J: By reference filed 27 May 2013, the legal representatives for Donal Cleve Adams referred to this Court his mental condition at the time of the commission of six offences of indecent treatment of children under the age of 16, one offence of attempted rape and one offence of unlawful stalking. The offences are alleged to have been committed between 31 December 1993 and 31 December 2010. [2] It is accepted there is a dispute of fact within the meaning of s 268 of the Act such that no finding may be made in relation to unsoundness of mind. At issue is the Defendant’s fitness for trial. Background [3] The Defendant was born on 23 October 1934. His first marriage, at 24 years of age, resulted in seven children. When that relationship failed, he lost contact with his children. He subsequently married his second wife. She had died in recent years. The charges [4] Three of the indecent treatment charges arise out of alleged incidents in 1993. The remaining three indecent treatment charges relate to alleged incidents in 1997 and 1998. The attempted rape is also alleged to have been committed in 1998. All refer to the one complainant, who the Defendant’s wife had cared for from when she was a baby. The complainant describes escalating sexual behaviour over many years. In essence, she alleges the Defendant regularly came into her room and sexually interfered with her. The attempted rape relates to any occasion when it is alleged the Defendant attempted to insert his penis into the complainant’s vagina. [5] The stalking charge arises from events alleged to have taken place between December 2010 to September 2011. It is alleged the Defendant attended the area where the complainant worked on multiple occasions. During these occasions, he would seek her out and stare at her for extended periods of time. The Defendant’s version [6] The Defendant denies any improper conduct between the complainant and himself. However, when asked about specifics, the Defendant was unable to provide any particular version. He claimed a lack of recollection of the events which had occurred many years before. Reporting psychiatrists -- 2 of 5 -- 3 [7] Dr Heffernan provided a report dated 9 November 2013. He noted that at the time of his interview with the Defendant he was complaining of difficulty remembering things and said he had experienced health problems over the past two years. He also complained of depression compounded by grief at the loss of his wife. He reported having been commenced on antidepressant medication approximately one to two years prior to the assessment. He also reported having developed, in the last one to two years, the experience of seeing “ghosts” around his house. He denied any auditory hallucinations, passivity phenomena and thought alienation experiences. [8] In respect of his current health, the Defendant reported he was looking after himself well, eating regularly and performing general living activities with some assistance. He reported trouble recalling events, and finding himself “confused” at times, although he had no problem finding his way around his house or his local neighbourhood. [9] Dr Heffernan noted the Defendant had had a CT scan in November 2012. The findings of that scan were that the Defendant suffered “mild diffuse brain atrophy and hypo dense areas in the peri ventricular while matter on both sides/chronic ischemic changes”. These were said to be in keeping with the Defendant’s age. However, an MRI brain scan performed in October 2013 reported the “temporal hippocampi are conspicuously atrophic”. A neuropsychological assessment performed by Dr Russell in May 2013 found the Defendant’s intellectual functioning was “in the extremely low range”. In Dr Russell’s opinion, his profile was supportive of a clinical impression of dementia. The Defendant’s general practitioner was also of the opinion the Defendant had suffered a cognitive decline, particularly over the past two years. [10] In Dr Heffernan’s opinion, the Defendant suffers from dementia. This has caused a number of cognitive impairments. Whilst those impairments would not be relevant to the time when the charges were alleged to have taken place, they significantly impacted on the Defendant’s fitness for trial. In Dr Heffernan’s opinion the impact of the Defendant’s dementing process is such that he is unfit for trial. This unfitness is likely to be of a permanent nature. The Defendant is unable to adequately comprehend the nature of the charges, the court processes, the significance of the charges against him, and their likely outcomes. These inabilities prevent him from participating meaningfully in his defence. [11] Dr Heffernan maintained those opinions in evidence. He opined that whilst the Defendant may well have the capacity to understand simply concepts, his capacity to deal with complex matters, and to retain information so as to process it and provide instructions in response thereto, was severely compromised by the dementing process. Once the Defendant was confronted with multiple layers of information, he would not have the capacity to understand that information, process it, and articulate what to do with that piece of information. In short, the Defendant’s brain was not working as it should, and his history of decline was very consistent with dementia. -- 3 of 5 -- 4 [12] Dr Andrzejewski provided a report dated 9 January 2014. In preparing that report, she did not have access to the same information as Dr Heffernan. However, Dr Andrzejewski accepted, after considering that information, that the Defendant was properly to be diagnosed as suffering dementia. She did not consider that condition was such as to render the Defendant permanently unfit for trial. In her opinion, whilst the Defendant had mild cognitive impairment, it was not such as to interfere with his ability to follow the legal process to a reasonable standard, any more than it interfered with his ability to maintain all other aspects of his life. [13] Dr Andrzejewski maintained this opinion in evidence. She opined the Defendant, in the course of her interview, had demonstrated an ability to process and weigh information with a level of sophistication, including new information. She acknowledged his ability to comprehend a number of charges would be more difficult but considered that if each charge was addressed separately in a timely manner, he would be able to respond sufficiently. Assisting psychiatrists [14] Dr Lawrence advised I ought to accept the opinions expressed by Dr Heffernan. Whilst the Defendant may have an ability to process information piece by piece, the difficulties arising from his dementia would significantly affect his ability to process large amounts of complex information. There was a real risk, as Dr Heffernan noted, the Defendant may have a “mild catastrophic reaction” as a consequence of the anxiety and stress brought on by his limitations from the dementia such that he would simply “give up”. Dr Sundin also advised I ought to accept Dr Heffernan’s opinion. The Defendant did not satisfy the criteria in R v Presser [1958] VR 45, and it was likely his condition would only get worse. Discussion [15] There is no dispute the Defendant suffers from dementia. It is also accepted the Defendant’s denial of the charges is a genuine dispute, which does not arise as a consequence of his dementia. I accept that dispute is a dispute of fact within the meaning of s 268 of the Act. No finding can therefore be made on the question of unsoundness of mind. [16] As to fitness for trial, I accept and prefer the evidence of Dr Heffernan. Dr Andrzejewski’s assessment was materially affected by her lack of access to substantial information which established the clear diagnosis of dementia. Whilst her evidence was given in the context of an acceptance of that diagnosis, her assessment that the Defendant was fit for trial failed to give proper regard for the very significant consequences of that diagnosis of dementia. [17] By contrast, Dr Heffernan’s opinion was a considered opinion against the backdrop of substantial evidence of dementia. His conclusions were highly persuasive, particularly as to the distinction between an ability to process simple information and an ability to process complex information. The Defendant is facing a number -- 4 of 5 -- 5 of charges, alleged to have occurred many years ago. There is a substantial need to retain information, process that information and provide instructions. That would require a higher level of functioning if he is to meaningly participate in a trial. I accept the cognitive defects would prevent him from meaningfully doing so. I accept the Defendant is permanently unfit for trial. This conclusion is consistent with the advice of the assisting psychiatrists. Future management [18] Neither Dr Heffernan nor Dr Andrzejewski favoured the making of a forensic order. Dr Heffernan opined there was sufficient input from the Defendant’s general practitioner, aged care health services and, possibly, mental health services to provide appropriate support and care plans to adequately manage any risk to the community. [19] Dr Sundin advised I ought to accept Dr Heffernan’s opinion. A forensic order would create problems in the Defendant’s management. The Defendant is clearly going to need placement in a residential nursing home facility in the near future, for his own safety and for the safety of the community. The presence of a forensic order is likely to inhibit the ability of his doctors to place him in such a facility. [20] Dr Lawrence did not express a similar concern. She advised a forensic order would ensure adequate investigation and treatment, together with helping to protect the public in the future. [21] Whilst I understand and accept the concerns raised by Dr Sundin, the alleged offences the subject of the reference are serious, and the Defendant is currently managing living in his own home in the community. The protection of the public requires the imposition of a forensic order. There is no reason why that forensic order should not include approved limited community treatment. [22] It will be important for the parties to carefully monitor the Defendant’s deterioration. If he does require admission to an aged care facility, consideration should be given to an application to the Mental Health Review Tribunal for any earlier determination as to whether, in that event, there is a need for the forensic order to continue after that placement. [23] I shall hear the parties as to the terms of a forensic order and any approved limited community treatment. -- 5 of 5 --