Baker, Re [2008] QMHC 12

MENTAL HEALTH COURT CITATION: Re Baker [2008] QMHC 12 PARTIES: REFERENCE BY THE LEGAL REPRESENTATIVE IN RESPECT OF HEATH LESLIE BAKER PROCEEDING: No 238 of 2007 DELIVERED ON: 18 November 2008 DELIVERED AT: Brisbane HEARING DATE: 27 and 28 October 2008 JUDGE: Philippides J ASSISTING PSYCHIATRISTS: Dr J M Lawrence Dr E N McVie FINDINGS AND ORDER: 1. That at the time of the alleged offences the defendant was not of unsound mind; 2. That the defendant is not fit for trial and that unfitness is of a permanent nature; 3. That the defendant be detained as a forensic patient at The Townsville Authorised Mental Health Service; 4. That limited community treatment is approved to commence immediately on the conditions contained in the submission from the defendant’s legal representative. CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant not of unsound mind – where defendant suffers from mild to moderate mental retardation and is profoundly deaf – where a difference of expert opinion as to whether the defendant is fit for trial – whether the defendant is fit for trial Mental Health Act 2000 (Qld), 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: Ms S M Ryan for the defendant Mr J Tate for the Director of Mental Health Mr A K Lossberg 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 6 -- 2 PHILIPPIDES J: Background [1] The defendant, Heath Leslie Baker, is charged with 29 offences, being two counts of stealing, eight counts of forgery and uttering, and 19 counts of fraud between April 2005 and June 2006. The offences concerned the use of eftpos cards belonging to others to withdraw money unlawfully, TAB offences involving the use of withdrawal slips and the selling of raffle tickets. [2] The defendant who was born on 30 July 1980 suffers from a mild to moderate mental retardation and is profoundly deaf. He also has a diagnosis of pathological gambling. He lives with his mother. [3] There is no evidence to indicate that there was any deprivation of capacity as a result of his natural mental infirmity and I am satisfied that at the time of the alleged offences the defendant was not of unsound mind. [4] The issue in contention on this reference is whether the defendant is fit for trial. The defendant has twice previously been found unfit for trial by this Court. Fitness for Trial [5] Schedule 2 of the Mental Health Act 2000 (Qld) (“the Act”) defines the expression “fit for trial” as meaning: “...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 test for determining fitness for trial set out in R v Presser [1958] VR 45, was approved in Kesavarajah v R (1994) 181 CLR 230 at 245 by Mason CJ, Toohey and Gaudron JJ who said: “In R 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 [1958] VR 45 at 48. Those standards, which are based on the well-known explanation given by Alderson B to the jury in R v Pritchard (1836) 7 Car & P 303 at 304; 173 ER 135 at 135, 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.” [7] As the High Court stated in Ngatayi v R (1980) 147 CLR 1 at 8, a reasonable and commonsense approach is to be taken to the application of the Presser criteria: “The test looks to the capacity of the accused to understand the proceedings, but complete understanding may require intelligence of quite a high order, particularly in cases where intricate legal questions arise. It is notorious that many crimes are committed by persons of low intelligence, but it has never been thought that a person can escape trial simply by showing that he is of low -- 2 of 6 -- 3 intelligence. We respectfully agree with the view expressed by Smith J in R v Presser [1958] VR 45, 48 that the test needs to be applied ‘in a reasonable and commonsense fashion’. Smith J went on to say that there are certain minimum standards which the accused needs to equal before he can be tried without unfairness or injustice, but added that the accused ‘need not have the mental capacity to make an able defence’.” [8] In R v M [2002] QCA 464, the Court of Appeal applied the Presser test in respect of the statutory definition. The Court held that in approaching the issue of fitness for trial, regard is also had to the fact that a defendant is represented by counsel; accordingly it is not necessary that a defendant understand the nuances of court procedure or the intricacies of substantive law (at [5]). Rather fitness for trial should be assessed in the recognition that a defendant is represented by counsel and that court proceedings may be structured in order to accommodate disability (at [7]). The Court noted: “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 with which courts should and do bear.” [9] The Court had before it reports from Drs Allan, James and Dark. They all also gave oral evidence. The Court also had the benefit of advice from the assisting psychiatrists, Drs Lawrence and McVie. [10] Dr Allan has had the care of the defendant for some 10 years. Dr Allan observed that there was some debate as to the precise level of the defendant’s intellectual disability and that current neuropsychological testing was somewhat at odds with previous assessments in that the defendant’s functioning abilities appeared to be higher than had previously been credited. He also noted that there had been an improvement in his level of understanding. Dr Allan considered that the defendant’s deafness amplified his underlying intellectual disability. In oral evidence Dr Allan was referred to the comment in Dr Dark’s report that, “The impression functionally is that [the defendant] does not have a significant intellectual deficit”. However, Dr Allan confirmed his view, having had the advantage of many interactions with the defendant over many years, that the defendant had a significant intellectual disability, which he placed at the better end of moderate. And certainly in terms of the assessment of the defendant’s intellectual disability, Dr Dark deferred to Dr Allan and emphasised that her interview with the defendant had not entailed a full intellectual assessment. [11] Dr Allan was of the opinion that the defendant was unfit for trial. He accepted that the defendant understood that he had been charged with offences relating to obtaining money and recognised there could be punishment for this. Dr Allan -- 3 of 6 -- 4 opined that the defendant would be able to enter a plea. He considered that the Presser criteria were satisfied except for two matters; where Dr Allan saw a deficiency was in the defendant’s ability to instruct a solicitor and follow the court proceedings and, as a result of a consideration of both those criteria, the defendant in Dr Allan’s view was rendered unfit for trial. [12] In his report of 3 September 2007, Dr Allan explained that his questioning of the defendant revealed that there were genuine issues of understanding. Dr Allan noted that the defendant’s answers were “curtailed” and went on to comment that: “It is not clear whether his evasiveness in answering questions and giving information relates to a sense of shame and embarrassment or whether he is covering up to try to avoid discovery”. However, in oral evidence Dr Allan clarified this, stating that he did not consider the defendant’s answers to be evasive in the sense of trying to cover up too much information, given that he also gave incriminating answers. In an earlier report, Dr Allan emphasised that the defendant was “cooperative and tried to be helpful but … was limited by his poor understanding of language and his intellectual capacity”. [13] In his report of 3 September 2007, Dr Allan concluded: “I still believe that he would have difficulty in following a trial. It has been argued that he would be able to follow the trial provided he had an appropriate interpreter. It is my experience from the interview with Heath that even with literal interpretation, he had difficulty understanding some of the questions and difficulty giving information, I therefore think it is unlikely that he would be able to instruct a Solicitor and follow the course of the trial.” [14] In oral evidence Dr Allan expanded on this stating that there was likely to be: “… an inconsistency in the way that he would represent himself to his solicitor. I think that he would have trouble making choices if given the opportunity for a solicitor to talk to him about, well, these would be obviously explained simply, but I think he would have trouble understanding the nature of choice in relation to how he might present his case and I do think that even though he’s had a lot of interviews, there is a lot of inconsistency in his accounting of the facts and his understanding of the facts. So, I think he would have difficulty following what was being told to him around that.” [15] In respect of the ability to instruct counsel, Dr Allan was also of the view that the defendant would encounter difficulty in understanding the advice of his legal representatives and in making decisions in relation to the course of proceedings. Dr Allan considered that the defendant would attempt to please people, pre-empt answers and give answers that he thought people wanted to hear, and this would interfere with his ability to instruct. Dr Allan also endorsed the opinions expressed by Dr Dark and referred to below, particularly as to the defendant being likely to be overwhelmed by the court process, and he tended towards the view that in a courtroom setting, there was a likelihood that the defendant would decompensate. [16] Dr Dark indicated that she was initially asked to advise on management issues, but had subsequently also been asked to report on the defendant’s fitness for trial, although she had not interviewed the defendant for that specific purpose. Nevertheless, she had reviewed his file and other clinical material and came to the -- 4 of 6 -- 5 same conclusion as Dr Allan that the defendant was unfit for trial. She noted the indication in the material that the defendant had on occasions given inconsistent answers. Her understanding of that inconsistency was that there was a tendency on the part of the defendant to try to please and to try to anticipate questions despite not always fully comprehending them. This is put down to a combination of the defendant’s profound hearing disability combined with his intellectual disability. She concluded: “It is not clear that he understands the concept of fraud. He responds to interviews in a co-operative but passive style not exercising his right to have questions clarified. In my opinion he would be overwhelmed by the proceedings and become more withdrawn and intimidated. He tends to try to anticipate what is required of him by different interviewers and appears at times to be inconsistent. In my opinion he is not being evasive. I do not feel he can adequately instruct counsel. The impairment is primarily of social cognition and would be difficult to improve.” [17] Dr James on the other hand, in his report of 20 August 2006, expressed the view that the defendant was fit for trial, stating that provided a skilled interpreter was available, he would be able to instruct counsel, would be fit to enter a plea, and that serious adverse consequences of a trial to his mental health would be unlikely. He noted that there had been some difficulty in ascertaining with any accuracy the degree and significance of any intellectual impairment and that the previous examining psychologist, Ms Noakes, made note of a degree of apparent skill and planning in respect of offences. However, when giving oral evidence he indicated that on further reflection, and after having the opportunity of considering the reports of Drs Allan and Dark, he had altered his position. Dr James clarified his report by stating that when he examined the defendant for the purposes of the report he was of the view that the question of fitness was a borderline one. At the reference hearing Dr James stated that he was ultimately inclined to the view that it was marginal, especially given that the defendant would need to contend with the formalised sitting of a court. Dr James also noted that the defendant’s emotional fragility when combined with the stressful environment of a courtroom might compromise his ability to challenge witnesses. It is fair to say that Dr James, to a large extent, was prepared to defer to Dr Allan given the latter’s much greater association with and understanding of the defendant’s situation. [18] I note the evidence of Dr James that he considered the defendant was capable of deceit and that his answers to some questions suggested he was being deliberately elusive. However, as mentioned, Dr Allan’s evidence was that the inconsistencies were a reflection of the defendant’s disabilities rather than his being deliberately evasive. In advising the Court, Dr McVie offered the clinical view that in this respect Dr Allan’s opinion was supported to some extent by Dr Dark and her concepts of social cognition. An aspect that caused me some concern was the seemingly high level of organisation involved in the events in question the subject of the charges. I do note, as Dr McVie highlighted, Dr Dark’s caution that the defendant’s understanding of concepts of money and credit may not be as highly developed as it seemed. [19] Dr Lawrence noted that the defendant’s level of comprehension was in some doubt and considered that there would be difficulties in his communicating his instructions -- 5 of 6 -- 6 to his solicitor, and to his following the proceedings in the courtroom. Dr Lawrence observed: “All of the examining psychiatrists have commented that he could readily become overwhelmed in the courtroom situation, and I believe that that would be very likely in so far as he does, in my opinion, display … some deficiency in his ability to process information and to communicate. He would obviously require a good deal of effort to be able to sustain attention and concentration with his disabilities, and if you add to that the extra anxiety that would be imposed by the courtroom situation, I think it’s very understandable that he could become overwhelmed in so far as he would probably just shut off and withdraw, as has been suggested by the experts.” [20] Ultimately, I found the views expressed by Dr Allan and Dr Dark persuasive. Dr Allan had the greatest knowledge and experience of the defendant, having been involved in his care for over 10 years and, although he acknowledged changes and improvements in the defendant’s abilities over time, he remained of the view that the defendant was permanently unfit for trial as a result of his disabilities on the basis of well elucidated reasoning. His view was adopted by Dr Dark and while her assessment of the defendant was limited, as Dr Lawrence commented, she brought to bear on the issue considerable experience as the Director of the State-wide Service for the Deaf and Hearing Impaired. And while Dr James was initially of a different view, it is significant that he modified his opinion, accepting that the issue of fitness was indeed marginal. In the circumstances, I prefer the opinions of Drs Allan and Dark. I find that the defendant is not fit for trial and the unfitness is of a permanent nature. Future Management [21] Both assisting psychiatrists recommended the making of a forensic order. Dr Allan, in addressing issues of future management, recommended assistance for the defendant’s pathological gambling. Disability Services Queensland have indicated some willingness to be involved if appropriately approached, and there have been recommendations made for his management and there is certainly a need for their involvement. I note that Dr McVie considered that the defendant should be involved in a specific program to address his gambling, which may need to be created on an individual basis with the assistance of Dr Dark’s team. Consideration should also be given to the need for a Guardianship Administration Tribunal application in respect of the defendant’s financial management (particularly having regard to evidence that the defendant had gone through $26,000 of winnings in the past and his gambling). Consideration may also need to be given to the involvement of an adult guardian. I note Dr McVie’s comments that when these additional supports are in place and established, the need for a forensic order may not be enduring. [22] I order that the defendant be detained as a forensic patient in the Townsville Health Service District. I approve limited community treatment to commence immediately on the conditions contained in the submissions from the defendant’s legal representative. -- 6 of 6 --