Downs, Re [2010] QMHC 19

MENTAL HEALTH COURT CITATION: Re Downs [2010] QMHC 019 PARTIES: REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF CAMERON CHARLES DOWNS PROCEEDING NO: No 237 of 2010 DELIVERED ON: 14 April 2010 DELIVERED AT: Brisbane HEARING DATE: 14 April 2010 JUDGE: Philippides J ASSISTING PSYCHIATRISTS: Dr J M Lawrence Dr E N McVie FINDINGS AND ORDER: 1. That in respect of the charge of serious assault on 16 May 2008 there is a reasonable doubt within the meaning of s 268 of the Mental Health Act 2000 (Qld) that the defendant committed the alleged offence; 2. That in respect of the remaining offences the defendant was not of unsound mind as described in Schedule 2 of the Mental Health Act 2000 (Qld); 3. That the defendant is fit for trial; 4. That proceedings against the defendant for all of the offences will continue according to law CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with serious assault, possession of dangerous drug, two counts of obstructing police, possession of a utensil and wilful damage – where there is dispute of fact in relation to a charge – where experts agree that the defendant may be fit for trial as a special witness – whether defendant is fit for trial Mental Health Act 2000 (Qld), ss 267, 268, Schedule 2 R v Presser (1958) VR 45 R v M [2002] QCA 464 COUNSEL: Mr J Briggs for the Defendant Mr J Tate for the Director of Mental Health Mr S Vasta 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 4 -- 2 PHILIPPIDES J: Background [1] Cameron Charles Downs is charged with a number of offences. They are serious assault, possession of a dangerous drug, two counts of obstructing police and one charge of possession of a utensil all on 16 May 2008. He is also charged with wilful damage on 15 August 2008. [2] In relation to the charge of serious assault, there is a dispute in relation to that charge which is not attributable to the defendant's mental condition such that a reasonable doubt arises. The Court therefore makes no finding as to the defendant's state of mind at the relevant time. [3] In relation to the other charges referred there is no defence available on the clinical material before the Court. [4] The issue that then arises is one of fitness for trial. The definition of fit for trial, as contained in the Mental Health Act provides as follows. “Fit for trial means 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”. [5] In the case of R v M [2002] QCA 464, the Presser criteria was discussed in the context of the concept of fitness for trial under the Mental Health Act. In that decision it was explained that fitness for trial in relation to the capacity to instruct counsel posits a reasonable grasp of the evidence given, capacity to indicate a responsibility 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 context for a person represented by counsel. Fitness for trial, of course, assumes that counsel would represent the client on the basis of the client’s instructions, that the giving of such instructions may take longer because of the intellectual deficit is a feature which courts should and do bear. [6] The Presser criteria refers to the following: the ability to understand the nature of the charge, to plead to the charge and to exercise a right of challenge, to understand the nature of the proceedings, namely that it is inquiry as to whether the accused committed the offence charged, to follow the course of the proceedings, to understand the substantial effect of any evidence that may be given in support of the prosecution and to make a defence or answer the charge. [7] The Court has received a number of clinical reports and has heard evidence from those who have provided reports. [8] Dr Beech, in his report of the 1st of March 2009, observed that the defendant had a history of learning problems, notably, expressive and receptive language difficulties as well as an intellectual deficit, and that his intellectual functioning was borderline. Nevertheless, he opined that the defendant was fit for trial. He considered that the definition of fitness for trial in the Act and the Presser criteria were satisfied. His evidence was that he was able to obtain an account from the defendant concerning the circumstances of the alleged offence. -- 2 of 4 -- 3 [9] Dr Beech accepted that the defendant may have difficulty in giving evidence under cross-examination and that the defendant’s language difficulties may mean that he could misconstrue questions or become flustered by them. Nevertheless, he considered that these difficulties could be mitigated by the defendant being made a special witness. In that case care can be taken to ensure that questions are put to the defendant in a simple form and that adequate time is given for the defendant to respond to them. [10] Dr Fama gave similar evidence to that of Dr Beech. He likewise noted the developmental disorder of speech and language and borderline intelligence issues, but he also opined that the defendant was able to give him an account of what had occurred and that despite the defendant’s deficits and his language limitations, the defendant was fit for trial, particularly, if he were to be made subject of a special witness direction. [11] Both doctors accepted that the defendant would suffer anxiety exacerbated by undergoing a trial, but neither considered that there would be substantial or have lasting adverse consequences to his mental condition. [12] Dr Marsh’s evidence accorded with that of Drs Beech and Fama in that he considered the defendant to be fit for trial, if made the subject of a special witness direction. [13] Dr Keane, in her reports, was inclined to the view that the defendant was not fit for trial. Her main areas of concern were to do with the defendant’s ability to instruct counsel and to give and follow evidence. These concerns appear to have primarily revolved around the defendant’s language deficits although she also referred to his poor memory. Nevertheless, in respect of the question of poor memory she did state that in respect of the events in question, he did seem to have a reasonable memory. I note that the defendant’s report to the various doctors appears to be consistent, which supports the opinion Dr Keane ultimately took that there was not such deficit in memory as to raise concerns as to fitness. [14] As to the concerns raised by Dr Keane in relation to the defendant’s language deficit, she qualified those concerns by reference to a recommendation that a speech assessment be conducted in order to delineate the full impact of the defendant's speech and language deficits on his cognitive functioning in terms of his fitness for trial. A speech pathologist, Ms Briker-Bell, conducted an assessment and provided a report. Her report outlined a number of areas of concern. However, it is notable that Ms Briker-Bell substantially modified her opinion as to fitness when it was explained to her that a vulnerable defendant, that is a defendant who has particular deficits, may be assisted through the process of being made a special witness. That caused her, once the position was explained, to modify her view to one that the defendant was fit for trial. [15] When Dr Keane was appraised of that development in the evidence, she indicated that, in relation to such issues as the impact of the defendant's expressive and receptive language disorder on his fitness for trial, she would defer to the view of the speech pathologist. -- 3 of 4 -- 4 [16] The result is that the clinical opinion from the psychiatrists is all to the same effect and that is that the defendant is fit for trial and those others who, initially, took a somewhat different view were inclined to moderate that opinion. [17] I am satisfied on the evidence that the defendant is fit for trial. Accordingly, all of the matters will proceed according to law. [18] I direct that a transcript of today’s proceedings be made available to the trial Judge and that consideration be given to making the defendant a special witness with allowances being made for the deficits that the defendant suffers from. Those deficits will require the Court to make special accommodation, particularly, in terms of the structure of the questions asked in cross-examination in particular. [19] The expert evidence is that questions put in cross-examination will need to be fashioned so that they are short and direct and do not involve an undue amount of conditional content. All those issues are more fully set out in the evidence that the Court has heard and the trial Judge would have the benefit of the transcript to fully understand what will be required. [20] I also direct that the parties be given leave to use the reports in any further proceedings. -- 4 of 4 --