Berndt, Re [2010] QMHC 46

MENTAL HEALTH COURT CITATION: Re Berndt [2010] QMHC 46 PARTIES: REFERENCE BY THE DIRECTOR OF LEGAL AID IN RESPECT OF DANIEL MARK BERNDT PROCEEDING NO: 133 of 2009 DELIVERED ON: 2, 4 June 2010 DELIVERED AT: Brisbane HEARING DATE: 2 June 2010 JUDGE: Philippides J ASSISTING PSYCHIATRISTS: Dr F T Varghese Dr E N McVie FINDINGS AND ORDER: 1. There is a reasonable doubt within the meaning of s 268 of the Mental Health Act 2000 (Qld) that the defendant committed the alleged offences. 2. The defendant is fit for trial. 3. Proceedings against the defendant are to continue according to law. CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with one count of murder, one count of rape and one count of assault with intent to commit rape – where there is a reasonable doubt as to the commission of the alleged offences due to a dispute of fact not attributable to defendant‟s mental condition – where defendant suffers from cognitive insufficiency – where experts modify opinion in oral evidence as to defendant‟s fitness for fit for trial – whether defendant is fit for trial Mental Health Act 2000 (Qld), s 268, Schedule 2 Kesavarajah v R (1994) 181 CLR 230 Ngatayi v R (1980) 147 CLR 1 R v M [2002] QCA 464 R v Presser [1958] VR 45 COUNSEL: Mr C Heaton for the Defendant Mr J Tate for the Director of Mental Health Mr D Boyle for the Director of Public Prosecutions SOLICITORS: Legal Aid Queensland for the Defendant Crown Law for the Director of Mental Health The Director of Public Prosecutions (Qld) -- 1 of 9 -- 2 PHILIPPIDES J: Background [1] The defendant, Daniel Mark Berndt, is charged with one count of murder, one count of rape and one count of assault with intent to commit rape, all between 2 October 2008 and 5 October 2008. The defendant was 42 years of age at the time of the alleged offences. Circumstances of the alleged offences [2] The victim of the alleged offences is Caroline Frances Bell, whose body was discovered on 4 October 2008 under a blanket. She had stab wounds to the chest and abdomen, with the fatal wound being a stab wound to the chest which penetrated the pericardium causing cardiac tamponade. A knife was found in the toilets at the nearby Boundary Hotel. It appears that the victim died after 9.00 pm on 3 October 2008. Two witnesses stated that they saw a man lying on top of the victim on the evening of 3 October 2008 in the park. They stated that she had blood on her chest and injuries to her face and that she was distressed and asked for help. These witnesses stated that they became involved in an altercation with the male person and took his wallet from his backpack. On 4 October 2008 police located the defendant at the Oz Care Hostel and during an interview with police the defendant stated that he had been in the park the previous night with a woman drinking, but denied having sexual intercourse with her or stabbing or assaulting her. He was interviewed again on 5 October 2008, when he made some admissions but continued to deny sexual intercourse or stabbing or assaulting the victim. A further interview occurred on 6 October 2008, during which the defendant provided further information, indicating that he had been involved in digital penetration with the victim and that there was an altercation with her, during which she produced a knife and threw it at him. The defendant stated that he threw the knife at the victim, hitting her in the stomach, but again denied having sexual intercourse or stabbing her. Dispute [3] The defendant disputes the offences. That dispute is not attributable to the defendant‟s mental condition. As Dr Schramm noted: “Given that [the defendant] is able to give a rather detailed account of his behaviour leading up to and then in the hours after the offences, I cannot argue that his dispute of facts arises completely out of any mental illness or natural mental infirmity impairing his memory.” [4] In those circumstances, there is a reasonable doubt as to the commission of the alleged offences such that the Court makes no finding as to the defendant‟s state of mind at the relevant time. Fitness for trial [5] The definition of “fit for trial” contained in Schedule 2 of the Mental Health Act 2000 provides: -- 2 of 9 -- 3 "Fit to plead at the person's trial and to instruct counsel and endure the person's trial with serious adverse consequences to the person's mental condition unlikely." [6] The classic test as to whether a defendant is fit for trial, contained in the decision of R v Presser [1958] VR 45, was approved by the High Court in Kesavarajah v R (1994) 181 CLR 230 at 245 as follows: “In Reg. v. Presser, Smith J. elaborated the minimum standards with which an accused must comply before he or she can be tried without unfairness or injustice. Those standards, which are based on the well-known explanation given by Alderson B to the jury in R. v. Pritchard, require the ability (1) to understand the nature of the charge; (2) to plead to the charge and to exercise the right of challenge; (3) to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged; (4) to follow the course of the proceedings; (5) to understand the substantial effect of any evidence that may be given in support of the prosecution; and (6) to make a defence or answer the charge.” (footnotes omitted) [7] A reasonable and commonsense approach is taken to the application of the Presser criteria. The test looks at the capacity of an accused to understand the proceedings. I note that complete understanding may require intelligence of a high order. However, it has never been thought that a person should avoid trial simply by showing that he is of low intelligence. (See Ngatayi v R (1980) 147 CLR 1 at 8.) In approaching the issue of fitness for trial it is not to be overlooked that a defendant is represented by counsel and accordingly it is not necessary that a defendant understand all of the nuances of Court procedure or the intricacies of substantive law involved in the case. Furthermore, as was stated in R v M [2002] QCA 464: “Fitness for trial, in relation to the capacity to instruct counsel, posits a reasonable grasp of the evidence given, capacity to indicate a response, ability to apprise counsel of the accused's own position in relation to the facts, and capacity to understand counsel's advice and make decisions in relation to the course of the proceedings. It does not extend to close comprehension of the forensic dynamics of the courtroom, whether as to the factual or legal contest. For a person represented by counsel, fitness for trial of course assumes that counsel will represent the client on the basis of the client's instructions. That the giving of such instructions may take longer because of intellectual deficit is a feature which Courts should and do bear.” Evidence of the reporting psychologists [8] Reports were obtained from two psychologists, Mr Hatzipetrou and Dr Douglas. Mr Hatzipetrou [9] The defendant was seen by Mr Hatzipetrou for the purpose of conducting a psychological assessment. In his report dated 11 May 2009, Mr Hatzipetrou noted that the results of the WAIS-111 testing revealed a Full Scale IQ score between 58-66 and fell within the mentally deficient range of intelligence (verbal and -- 3 of 9 -- 4 performance IQ were both 64 and verbal comprehension was 61). Mr Hatzipetrou also used the MacArthur Competence Adjustment Tool – Clinical Adjudication to measure the defendant‟s competence to stand trial, which indicated that the defendant fell within the clinically significant impairment range on understanding, reasoning and appreciation. Mr Hatzipetrou concluded: “Based upon the current assessments, [the defendant] presented with significantly impaired reasoning abilities and he demonstrated limited appreciation of his own legal predicament. Similarly, [the defendant] did not posses the knowledge or understanding of court processes, concepts of legal rights and roles of key personnel. [The defendant] did not possess the capacity to contest incriminating evidence or provide instructions to his legal counsel. He would be significantly disadvantaged in the courtroom and he was highly susceptible to interrogative suggestibility and acquiescence. Given [the defendant‟s] intellectual impairment, he was vulnerable to leading questions and he possessed poor social skills and ineffective coping mechanisms. Under the pressured conditions of court, [the defendant] would be at considerable risk of providing erroneous testimony and making impulsive comments. The evidence suggested [the defendant] does require high levels of continual assistance to improve his competencies to stand trial. Furthermore, he will require intensive support to assist him through the court process. Whilst he was willing to cooperate with his legal representation, [the defendant] did not possess the adequate capacity to understand and follow a legal proceeding. In light of these findings, [the defendant] did appear to be unfit for trial.” [10] In oral evidence Mr Hatzipetrou indicated that he had not considered the issue of fitness specifically in terms of the Presser criteria. He also stated that he had not had access to all of the defendant‟s police interviews. Having considered the question in the light of the police interviews and bearing in mind the Presser criteria, Mr Hatzipetrou modified his opinion to one that the defendant was fit for trial. Dr Douglas [11] The defendant was assessed by Dr Douglas on 23 September 2009, as outlined in her report of 22 October 2009. She concluded that the defendant was an individual of limited cognitive capabilities that were most likely due to a mix of both pre- existing cognitive insufficiency reportedly present since birth, excessive alcohol abuse from the age of 14 years and a reported head injury in the late 1990s. She noted that the psychological assessments which she and Mr Hatzipetrou had conducted in 2009 essentially revealed cognitive skills that fall in the Extremely Low to Borderline range of functioning, ie the first-fifth percentiles on the vast majority of tasks administered. She noted, however, that: “Low cognitive ability does not, in and of itself, preclude an individual from being fit to stand trial. Indeed what would appear to be of substantial importance in this particular case are the following observations: 1. [The defendant] has a past significant history of violent behaviour towards women … -- 4 of 9 -- 5 2. Of notable concern is that [the defendant‟s] victims appear to consistently be members of the public who are particularly vulnerable … 3. [The defendant] is more than capable of presenting to the police a story that is consistent with the facts of the case and plausible (he and [the victim] engage in sexual activity and he was later attacked by some youths and had his wallet stolen) suggesting he can create a defence and has memory for these events. His claim that he now has no memory for this incident is contradicted by the amount of information he provided over the four records of interview and I could find nothing within the transcripts to suggest the police were deliberately misleading [the defendant] and attempting to get him to confess to crimes under duress. In fact I would note that as Dr Schramm observed, the only times [the defendant] became flustered and evasive is over the time/sequence of events and on these occasions one can clearly see the police attempting to obtain a clear timeline of what happened from [the defendant], but I can see nothing to suggest this is being done in a leading manner, my reading of the transcripts indicates they were seeking clarification from [the defendant]. 4. [The defendant] is of the belief that he is unable to control his behaviour when drunk and also that this leads him to have no memory for events committed when he has been drinking. I would however note that I can find no evidence to suggest that in fact [the defendant‟s] memory abilities are impaired (through alcohol abuse or head injury) either through my reading of the records provided, his ability to recall extensive biographical information freely on clinical interview with myself, or his performance on a verbal learning and memory test I administered in this assessment. I note that Dr Schramm observed that the only time [the defendant‟s] memory for events appeared to fail was when he was asked to discuss the events of the current crime and his past convictions. Dr Van de Hoef similarly noted that [the defendant] minimised, denied or concealed many aspects of his history in her psychiatric interview with him (particularly his forensic and alcohol abuse history) and it was her view that these gaps and minimisations did not appear to be clearly related to any memory or cognitive deficits. I would concur with this opinion. Based on the above observations and findings I am of the opinion that, with support, [the defendant] is fit to stand trial on the charges laid against him. While he is undoubtedly of low overall cognitive ability it is my opinion that this is not at a level that would prevent him from participating in a trial and presenting a defence to the court. I note he was found fit for trial in 2004 and there is no record of any event between then and the current allegations that I can find that would now render him unfit for trial.” -- 5 of 9 -- 6 Evidence of the reporting psychiatrists Dr Schramm [12] Dr Schramm interviewed the defendant at the Arthur Gorrie Correctional Centre on 22 January 2009 and provided a report dated 19 May 2009. Dr Schramm diagnosed the defendant with intellectual impairment and personality change due to brain injury, along with significant cognitive deficits. However, he revised his opinion in relation to the issue of brain damage after having read Dr Byrne‟s report. [13] In relation to the issue of fitness for trial, Dr Schramm observed the following: “He was aware that he needed to plead guilty or not guilty and knew the meaning of these terms. He knew that he had legal representation and indicated that he planned to take advice from [his solicitors] as to how he could plead. … He knew that his charges would be dealt with in a court of law and he knew that a judge, solicitor and prosecution were important parties and could give a limited but reasonable explanation of the roles of these persons. He was aware that there were statements contradicting his initial account and, although it was done with some difficulty, he was able eventually to indicate his dispute of these. I was satisfied that, with much time and caution, he was able, albeit with a repeated tendency to become agitated and drift off track, to answer each point I put to him and that he could understand these issues. As I have already indicated, he had great difficulty in providing a consistent and sequential account of his actions on that day and quite clearly becomes quickly flustered and confused when asked to clarify certain matters revolving around the version of events he provides.” [14] Dr Schramm noted that the defendant was difficult to interview because of a tendency to be both evasive and tangential. He observed that the defendant was a man who, by virtue of his poor coping skills, intellectual impairment and intoxication at the relevant time, would be prone to producing contradictory and confusing accounts of his actions. Dr Schramm further observed that the defendant‟s greatest difficulties seem to arise when he is challenged with his contradictory statements (in contrast to discussion of more mundane matters) which Dr Schramm observed must at least raise the suggestion that the defendant is, by virtue of his low intelligence, having difficulty in providing a consistent fabrication of the events. He further states, “On that issue with regards his performance in those interviews with police, I would suggest that his disorganisation with regards giving his contradictory accounts with police in my view just as easily be explained by being flustered and deliberately evasive in attempting to be untruthful as his propensity to be flustered alone by virtue of his low intelligence”. Dr Schramm considered the Presser criteria and concluded that the defendant would seem to fulfil most of the criteria. [15] He observed that: “Where there is some significant question regarding his fitness, I point to his apparent difficulty in providing a succinct, consistent and sequential account of the events and to account for his contradictory statements given his gross propensity to deteriorate into an anxious -- 6 of 9 -- 7 state when he is being questioned on this topic. As I have already alluded to a number of times, I believe that much of this could be explained by his difficulties in maintaining a consistent false story. It may also represent a true amnesia for these details afforded by his cognitive impairments, gross intoxication at the time and the barrier afforded by his anxiety. Even if he is being truthful in his account (in not remembering actually assaulting or stabbing [the victim]) I would argue he is able to answer on a point by point basis whether or not he has behaved in a particular way (except for those matters where he has no memory, which I understand would not be grounds for finding him unfit). I appreciate … the court will have great difficulty in pinning him down to answering simply „yes or no‟ (as I did), but would not consider that this difficulty alone would be sufficient to consider him unfit for trial.” [16] Dr Schramm also noted that, with persistence and a considerable amount of time, he was satisfied that on a point by point basis the defendant had a capacity to confirm or deny particular allegations, but that his intellectual impairment (resulting in his easily being flustered) meant that one could not presume that he was able to give a sequential version of events. He also noted that the defendant made several contradictory statements throughout the interview, some of which Dr Schramm felt could be explained by a degree of confusion, but others which Dr Schramm felt were better explained by his being deliberately evasive. [17] In giving oral evidence, Dr Schramm indicated that those qualifications he held in his report, particularly as to the defendant‟s suggestibility, had resolved and that he considered that the defendant met each of the Presser criteria and that he was fit for trial. Dr Van de Hoef [18] Dr Van de Hoef saw the defendant on 8 October 2009 and provided a report dated 9 October 2009. She diagnosed the defendant with mild intellectual handicap, resulting in learning and social difficulties and accounting for his special school education and lack of employment. She considered that his difficulties may have been compounded by an acquired brain injury and that it was possible that this had resulted in personality changes or frontal lobe deficits or further cognitive decline. She also diagnosed a history of alcohol abuse and dependence of many years duration, now in remission because the defendant was in custody. She considered that it was possible that this abuse may have exacerbated his original intellectual deficits and may also have been associated with a number of other head injuries. In addition, she considered that the defendant had marked antisocial personality traits. [19] Although Dr Van de Hoef considered that the defendant suffered from a mild intellectual handicap and possible frontal lobal damage, she did not consider that the defendant was unfit for trial. She observed that the defendant “clearly understands the charges against him, can instruct counsel and can enter a plea. His literacy is limited, and he has an intellectual impairment, so instructions and questions may need to be simplified or repeated, an extra time given for him to process information, and to provide answers. Despite his limited literacy, he accurately recalled and named his court mention dates, and produced all his legal correspondence sorted in order. He understands, in a basic way the nature and -- 7 of 9 -- 8 functions of the agents of the court (though not of a jury). He could in my view withstand the rigours of a trial without detriment to his mental health.” Dr Byrne [20] Dr Byrne conducted an interview with the defendant on 21 December 2009 and provided a report dated 22 February 2010. Dr Byrne noted that on the Mini-Mental State Examination (MMSE), a screening test for cognitive impairment, the defendant scored 27 out of a possible score of 30. Scores of 24 or less are generally considered indicative of clinically significant cognitive impairment of the type seen in people with dementia. Dr Byrne noted that the defendant had a long history of alcohol abuse and dependence, currently in remission, occurring on a background of lifelong intellectual impairment of sufficient severity to warrant the diagnosis of mild mental retardation. Dr Byrne observed as noteworthy that when the defendant was examined by staff at the community forensic mental health service on 6 October 2008, they found no evidence of serious mental illness. He considered it likely that the defendant had longstanding antisocial personality traits and possibly an antisocial personality disorder. He observed that the defendant had sustained multiple fractures, including multiple facial fractures leading to several hospital admissions and surgical procedures. He also noted that the defendant had claimed that he had sustained “brain damage” and at times medical personnel have conjectured that the defendant might indeed have sustained brain damage on top of his mild mental retardation. However, Dr Byrne could find no clear evidence in the material he examined to confirm this conjecture. In this regard he observed that a CT head scan performed on 15 March 2008 indicated no acute intracranial injury. Dr Byrne noted that: “During my clinical assessment of [the defendant] there was evidence of mild cognitive impairment. However, I thought the pattern of his cognitive difficulties were more consistent with his known mild mental retardation than with an acquired disorder such as a frontal lobe syndrome or a dementing disorder. In addition he did not have the type of dense amnesia seen in the alcohol amnestic disorder (Wernicke-Korsakoff syndrome).” [21] Dr Byrne noted that the defendant denied the offences but considered that the dispute did not occur solely on the basis of his mild intellectual retardation or any other mental disorder. In relation to the issue of fitness for trial, Dr Byrne concluded that the defendant was fit for trial and stated: “[The defendant] appears to understand what it means to plead guilty or not guilty. [The defendant] appears to understand the nature and significance of the charges against him. He has faced similar charges before. He now denies the charges and appears to be constructing a rudimentary defence. He has a general understanding of the roles of the officers of the court, mainly as a result of his previous experience before the courts. I think [the defendant] should be able to provide counsel with simple instructions, and with assistance should be able to understand the broad effect of evidence given against him and make a proper decision about whether to give evidence himself. I think [the defendant] would have the capacity to challenge jurors, but only with the considerable assistance of counsel. I think [the defendant] would be able to adequately follow the proceedings of the court, but only with the assistance of counsel. In my view, it is -- 8 of 9 -- 9 unlikely that [the defendant] would be disruptive in court, and he should be able to follow straightforward directions from the bench. [The defendant‟s] mental condition is unlikely to be adversely affected as a result of his appearance in court.” Conclusion [22] The clear evidence of Drs Douglas, Van de Hoef and Byrne as stated in their reports was that the defendant was fit for trial. While Dr Schramm and Mr Hatzipetrou expressed some reservation in their reports, in their oral evidence their views moved to one that the defendant was fit for trial. In the light of that oral evidence, counsel for the defendant properly conceded that the weight of the evidence was that the defendant was fit for trial. [23] In the light of the evidence I find that the defendant is fit for trial. The proceedings are to continue according to law. I grant leave to the parties to use the clinical reports before the court and the transcript of these proceedings in further proceedings. -- 9 of 9 --