BSR, Re [2008] QMHC 24

MENTAL HEALTH COURT CITATION: Re BSR [2008] QMHC 24 PARTIES: REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF BSR PROCEEDING: No 0015 of 2007 DELIVERED ON: 6 June 2008 DELIVERED AT: Brisbane HEARING DATE: 6 June 2008 JUDGE: Philippides J ASSISTING PSYCHIATRISTS: Dr J Lawrence Dr F Varghese FINDINGS AND ORDER: 1. In respect of the alleged offences of rape, and failing to make reasonable endeavours to obtain medical aid, there is reasonable doubt as to the commission of the offences and I make no finding; 2. In respect of the remaining offences I find that the defendant is not of unsound mind; 3. The defendant is fit for trial; 4. The proceedings will continue according to law. CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with counts of rape, serious assault, unlawful entry of a motor vehicle with intent to commit indictable offence, stealing, dangerous operation of a motor vehicle causing death, unlawful use of a motor vehicle, failing to make reasonable endeavours to obtain medical aid, wilful damage, and three charges of common assault – where assessment tools initially demonstrated the defendant’s intellectual capacity to be less than subsequently administered culturally neutral assessment tool indicated – whether the defendant had an intellectual disability of a severity sufficient to deprive him of a relevant capacity at the time of the alleged offences – whether the defendant was fit for trial Mental Health Act 2000 (Qld), Schedule 2 Cooper v. McKenna; Ex parte Cooper [1960] Qd.R. 406 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 The Queen v. Falconer [1990] 171 CLR 30 COUNSEL: Mr J Farmer for the defendant -- 1 of 4 -- 2 Mr A Ross for the Director of Mental Health Mr S Vasta for The Director of Public Prosecutions (QLD) SOLICITORS: Legal Aid Queensland for the defendant Crown Law for the Director of Mental Health The Director of Public Prosecutions (QLD) [1] PHILIPPIDES J: The defendant is charged with the following offences: stealing between 11 June 2006 and 17 June 2006; rape between 16 June 2005 and 30 June 2005; serious assault on 24 October 2005; unlawful entry of a motor vehicle with intent to commit indictable offence on 16 June 2006; stealing also on that date; dangerous operation of a motor vehicle causing death on that date; unlawful use of a motor vehicle between 13 June 2006 and 17 June 2006; failing to make reasonable endeavours to obtain medical aid on 16 June 2006; wilful damage on 18 September 2006 and common assault also on that date. There are two further common assault charges arising out of events that occurred on the 16th of February 2008 that are the subject of the amended reference. [2] In relation to the charge of rape, the defendant was at the time of the alleged offence under the age of 14 and given s 29 of the Criminal Code I am satisfied that a reasonable doubt arises as to the commission of the alleged offence. Indeed a concession was made by counsel for the Director of Public Prosecutions in that regard. In the circumstances this Court makes no finding as to the defendant's state of mind at the time of that alleged offence. [3] In relation to the charge of failing to make reasonable endeavours to obtain medical aid, Dr Fama and Dr Hartman opined that the defendant was of unsound mind at the time of that alleged offence, because of evidence that he was concussed as a result of the motor vehicle accident he was involved in. However, I note that concussion in those circumstances does not give rise to a defence of insanity, as Stable J observed in Cooper v. McKenna; Ex parte Cooper [1960] Qd.R. 406 at 417 (see also The Queen v. Falconer [1990] 171 CLR 30 at 50 to 54.) [4] Nevertheless, the evidence concerning the defendant having suffered a concussion at the relevant time does raise the issue of a possible defence under s 23 of the Criminal Code and in my view a reasonable doubt arises such that in relation to that charge also no finding may be made as to the defendant's state of mind at the relevant time. [5] In relation to the other charges, the evidence before the Court from Dr Hartman is that the defendant was not of unsound mind at the relevant time. Dr Fama offered a contrary opinion in his reports. However, when giving oral evidence he resiled from that position largely because it had been based on an assessment that the defendant suffered from intellectual disability of a severity which Dr Fama accepted could no longer be maintained. He, therefore, also supported a finding that the defendant was not of unsound mind in relation to the balance of the charges. [6] That leaves the question of whether the defendant is fit for trial. A report dated 2 August 2005 in respect of the defendant's intellectual capacity provided by Sharon Daniels indicated that the defendant suffered from intellectual disability. The defendant’s full scale IQ was measured at the first percentile (IQ 62-67). His verbal -- 2 of 4 -- 3 IQ was measured as less than 62 and his performance IQ as 79. Ms Daniels noted in her report the discrepancy between verbal and performance IQ and indicated that the defendant's second language is English and that he had missed quite a deal of his schooling, and added this important rider to her report: "These results could be adversely affected by the absence of a Creole translator for this assessment." [7] Dr Hartman and Dr Fama both offered the opinion in their initial reports that the defendant was unfit for trial and that the unfitness was of a permanent nature. However, after being provided with a report from Mr Colquhoun, they both altered their opinions to one of temporary unfitness. [8] Mr Colquhoun provided a report in relation to the question of intellectual impairment which was based on assessment using tools which were culture free. He stated that his assessment of the defendant did not provide support for the opinion that the defendant suffered from an intellectual impairment. His assessment of the defendant accords with that of Dr Hunter, who provided a very detailed report concerning the issue of whether the defendant was unfit for trial. Dr Hunter stated in his report: "I believe that he is probably functioning effectively somewhere in the low normal range of intelligence and that the context of his previous assessments compounded the perception of deficits." [9] He went on to say: "On the basis of my examination I believe that [the defendant] is capable of understanding the processes involved in Court proceedings and assisting his legal team. Given his history, abilities and circumstances for that to be effected I believe he will require special consideration, specifically a sufficiency of time, adequate explanation and the presence of trusted informants (his aunts and indigenous person with proficiency in Creole and English or preferably both). With these factors taken into consideration I believe that he is fit to stand trial." [10] The definition of “fit for trial” is contained in schedule 2 of the Mental Health Act 2000 which provides as follows: "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." [11] The classic formulation of the test as to whether a defendant is fit for trial is contained in the decision of R v. Presser [1958] VR 45 as approved by the High Court in Kesavarajah v R (1994) 181 CLR 230 at 245. The Court in the latter case stated: “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 -- 3 of 4 -- 4 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.” [12] 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. [13] 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.” [14] Moreover, that a defendant may require assistance through a translator is also a feature which Courts are able to and do regularly deal with. [15] Dr Fama, although stating in his second report that he considered the defendant was temporarily unfit for trial, did accept that he had not seen the defendant for some time and to some extent deferred to Dr Hunter, in that regard who had seen him very recently and quite extensively. He also accepted that the report of Dr Hunter appeared to indicate that there had been an improvement in the defendant's position. On balance, I prefer the very detailed and more recent assessment of the defendant's fitness for trial as outlined in Dr Hunter's report. That is also the opinion favoured by the assisting psychiatrists. [16] Accordingly, I find that the defendant is fit for trial. In those circumstances, the proceedings will continue according to law. [17] I grant leave to the parties to use the medical reports before this Court in any further proceedings. I also consider that it may be a matter of some significance to note that the long and protracted history of this case has occurred through no fault of the defendant in this matter, but rather because of the difficulty that experts have had clinically in respect of issues to do with unsoundness of mind and fitness for trial and particularly difficulties arising from the cultural context in which assessments have been made. I would expect that these matters will be brought to the attention of the Court dealing with the proceedings. -- 4 of 4 --