Bennett, Re [2007] QMHC 24

MENTAL HEALTH COURT CITATION: Re Bennett [2007] QMHC 024 PARTIES: REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF WILLIAM COLIN BENNETT PROCEEDING NO: 0164 of 2006 DELIVERED ON: 25 July 2007 DELIVERED AT: Brisbane HEARING DATES: 7 June 2007, 12 June 2007, 16 July 2007 JUDGE: Philippides J ASSISTING PSYCHIATRISTS: Dr Wood Dr Lawrence FINDINGS AND ORDERS 1) There is a reasonable doubt as to the commission of the alleged offences 2) The defendant is fit for trial 3) The proceedings continue according to law CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with various counts of indecent assault on a male – where there is a reasonable doubt that the defendant committed the alleged offences – where defendant reported suffering from memory loss and blackouts – whether the defendant suffered from a Dissociative Disorder or Amnesia – whether the defendant was as a result unfit for trial COUNSEL: P Murphy for the defendant J Tate for the Director of Mental Health B Lehane for the Director of Public Prosecutions SOLICITORS: Robertson O’Gorman for the defendant Crown Law for the Director of Mental Health The Director of Public Prosecutions (Qld) [1] PHILIPPIDES J: William Bennett, who is aged 75, has been charged with seven counts of indecent assault on a male, which are alleged to have occurred between 9 June 1969 and 31 December 1971. These comprise: • one count of attempting to commit an unnatural offence between 9 June 1969 and 31 December 1971; • one count of indecent assault of a male between 1 January 1971 and 31 December 1971; -- 1 of 8 -- 2 • three counts of indecent treatment of a boy under 14 years between 1 January 1970 and 31 December 1971; • 6 counts of indecent assault on a male between 1 June 1969 and 31 December 1971. [2] The complainants were members of a choir, of which the defendant was the choirmaster. The defendant disputes the allegations. Given that factual dispute and that the dispute cannot simply be attributed to a mental condition suffered by the defendant, it is not appropriate for this court to make a determination as to the question of the defendant’s soundness of mind at the relevant times. I find that there is a reasonable doubt as to the commission of the alleged offences. [3] The real issue for determination is whether the defendant is unfit for trial because of his suffering from a Dissociative Disorder or Amnesia or other conditions. Reports provided on a previous reference [4] In February 1991, the Mental Health Tribunal heard a reference in respect of charges then pending. Dr Mulholland and Dr Grant provided reports in which they indicated that the defendant might suffer from a Dissociative Disorder and be unfit for trial as a consequence. Dr Grant, who stated he had observed the defendant experiencing an “altered state of consciousness” which continued for a few minutes, concluded that the dissociative episodes reported by the defendant were “probably motivated at a number of levels psychologically speaking”. [5] Dr Mulholland indicated that the first episode of dissociation had occurred in the context of his fifteen year old son revealing his homosexuality. He noted that a neurophysician, Dr John Bradfield, reported that a CT scan and an EEG had revealed no abnormality, nor any central neurological disorder and that the episodes did not constitute an epileptic disorder. Dr Mulholland considered that there was nothing to suggest that the early dissociative episodes indicated malingering, given he did not have anything to gain at that time except avoidance of an immediate psychological problem, but observed that: “Latterly, and particularly in relation to these criminal charges, it is easy to hypothesise that the gain involves avoidance of the charges. It is a possible theory that these dissociative episodes started off as genuine episodes and, at some later time, they became the result of conscious motivation, i.e. malingering.” [6] The Mental Health Review Tribunal found the facts relating to the alleged offending to be in dispute and so made no finding as to the defendant’s state of mind at the relevant time, but determined that he was fit for trial. Clinical reports compiled in relation to the reference Dr Curtis [7] Dr Curtis provided a report dated 14 October 2005, in which he outlined the defendant’s reported partial memory loss from the age of 13 and his report of memory dysfunction which covered everything except for a sketchy recall of places where he lived. Dr Curtis concluded that “it is seemingly impossible, clinically, to reconcile a recognisable syndrome of memory dysfunction with Mr Bennett’s reported symptomatologies.” Dr Curtis commented that an amnesia as extensive as -- 2 of 8 -- 3 that described to him, with three day attrition periods for recall of recent memories, should practically preclude all new learning, which did not appear to be the case. He noted that the defendant could manage to operate complex financial software in the family brokerage business. He was able to do habitual activities such as musical and computer keyboarding. He observed that despite the reported amnesia, he was a successful musician, teacher and engaged in a 12 year family business providing mortgages for clients, including clients with difficult financial histories. Dr Curtis opined that “Mr Bennett’s amnesia figures as an oddity in all of this” and he would have expected dissociative personality disorder, if it was present, to have disordered his life much more than it had. Dr McLaughlin [8] Dr Curtis arranged for Mr Bennett to consult a neurologist, Dr McLaughlin, for MRI and EEG opinions. He reported that he had had two head injuries, one at the age of 13 and the other some 20 years previously. Dr McLaughlin opined that “the nature of his memory disturbance is quite unusual if due to structural pathology of the brain” and, after reviewing the MRI and the EEG which were normal, concluded that there were no significant abnormalities. Dr Steinberg [9] Dr Steinberg, a psychiatrist, saw the defendant on 8 June 2006 and provided a report dated 26 June 2006. The defendant told Dr Steinberg that a man who was now an Assembly of God Minister in Melbourne had made allegations of sexual abuse by the defendant between 1969 and 1970. He claimed to have no memory at all of the complainant. He claimed to have blackouts over a period of 30 years. Dr Steinberg recorded a detailed account of the defendant’s daily routine; the defendant said he had sold his business, which employed twelve people, to his daughter “because of current litigation issues”, but still attended the office and had an active average working day training staff in the office through to 5 pm. He had only recently stopped going to regional centres for work. Dr Steinberg opined that the reported blackouts were related to stress and anxiety. He found no cognitive deficit and concluded that there was no psychiatric disability fulfilling the criteria for a DSM-IV psychiatric diagnosis. Dr O’Dowd [10] Mr Bennett was referred to Dr O’Dowd for a psychological assessment on 10 July and 11 July 2006. She observed that qualitative analysis of the defendant’s clinical and psychometric profile revealed a number of unusual findings, some of which did not make neurological sense. For instance, she reported he was unable to recall much of his childhood yet was able to provide a reasonably good account; there was a deterioration in some of his obtained scores over repeated trials rather than an improvement and the pattern and level of apparent impairments was not commensurate with his reported premorbid abilities, his past education and work achievements, nor his current work performance and clinical presentation. [11] The defendant also achieved unusually low free recall and recognition scores in two formal systematic measures specifically designed to assess the authenticity of a memory complaint, which Dr O’Dowd considered suggested that he was not applying his maximum effort. Dr O’Dowd considered that it was impossible to -- 3 of 8 -- 4 disentangle suboptimal scores, due to apparent fluctuations in his motivation and/or effort from potentially true deficits (if any). She observed: “In the present assessment there were a number of indications to suggest that Mr Bennett may be over-representing certain cognitive and emotional behavioural problems. Also numerous a-typical findings in his psychometric profile and in formal assessments of effort raised concerns as to whether Mr Bennett had applied maximum effort throughout all cognitive tasks administered. In view of these incongruous findings, the influence of possible deliberate or unconscious distortion of the results is a strong concern.” [12] For these reasons she considered that the psychometric results, interpretations, and conclusions presented in her report must be viewed with extreme caution. Dr Martin [13] Dr Martin, a psychiatrist, saw the defendant on 4 July and 12 July 2006. He noted the defendant’s history of memory disturbance and his report that he had recently experienced “flashbacks” to having been sexually abused in childhood and adolescence. Dr Martin opined that Mr Bennett suffered from a memory disorder best described as Dissociative Disorder. Dr Martin administered the Dissociative Experiences Scale (DES) and the Dissociative Disorders Interview Schedule (DDIS). These scales are directed to symptoms associated with Dissociative Disorder. The defendant scored about 37% on the DES which Dr Martin considered to be a significant indicator of dissociation. On the DDIS, he met the criteria for Dissociative Amnesia and Depersonalisation Disorder, and Major Depressive Disorder (recurrent and severe, without psychotic features) was also diagnosed. Dr Martin considered that Dissociative Amnesia was supported by the defendant’s history of memory loss; his reported dysfunction dating to 1980 and partial memory; and his personal observation of the defendant. [14] As to fitness for trial, Dr Martin expressed concern as to the defendant’s capacity to give instructions and to conduct his defence and to respond to evidence presented, observing: “He states that he cannot recall any details of the alleged offences. He cannot recall the time that the offences may have occurred or what he was doing at the time. Presumably these allegations centred around the time that he conducted the various municipal school choirs. He has no recall of conducting these choirs, he has reconstructed some of this period through memorabilia and other items he has in his possession. He does not recall any of the people who have accused him. It is likely that his Dissociative Disorder, that is his Dissociative Amnesia, stops him from remembering specific events in question. It is likely that this process is made worse by the presence of stress and also Major Depressive disorder from which he is suffering. It is unlikely that his inability to recall is purely malingering or feigning memory loss. Therefore his incapacity to remember specific events makes it impossible for him to give instructions and to conduct his defence or to respond to evidence presented against him. There is no guarantee that with treatment he will recover memories about the -- 4 of 8 -- 5 alleged incidents and be able to give instructions and conduct his defence. With treatment his Major Depressive disorder should improve but he will still be left with his Dissociative Amnesia. It is difficult to be certain to what extent conscious factors affect Mr Bennett’s capacity to recall events. I do believe, however that his psychiatric disorder, namely Dissociative Amnesia, affects him to the severity that in regard to his current charges he is unable to participate meaningfully in his own trial. Therefore on the balance of probabilities he is unfit for trial.” Dr Douglas [15] In a report prepared by Dr Douglas covering an interview and testing conducted on 19 October 2006 and 2 and 8 November 2006, she concluded that there was no evidence on the cognitive assessment for the presence of any limitation, weakness or decline in this area that would render the defendant unfit to stand trial from either a cognitive or a psychosocial standpoint. [16] Dr Douglas reported a Full Scale IQ rated at 126 (all superior range). She made the observation that during the period of testing the defendant exhibited episodes which tended to mimic petit-mal type states but showed immediate full orientation both before and after these episodes: “Mr Bennett does not present on testing as an individual suffering with any type of amnesia (dissociative or otherwise), or in a fugue state. His presentation with myself was in fact more characteristic of someone imitating petit mal or absence seizures (emphasis added). Thus he displayed very idiosyncratic, spasmodic, jerky bodily movements and vacant stares, with a claimed loss of memory for the time these incidents occurred, but with no confusion on “awaking” from these episodes.” [17] Dr Douglas concluded that the psychological assessment contained nothing within it from either a cognitive or psychosocial standpoint that would suggest the defendant was unfit to stand trial and considered that the defendant’s presentation had a staged quality with episodes mimicking epileptic absences. Dr Reddan [18] Dr Reddan, a forensic psychiatrist, provided a report of 13 January 2007, having examined him in late 2006, and was also unable to support an assessment of unfitness for trial. Dr Reddan noted that dissociation is a psychological defence mechanism, and degrees of dissociation are common in ordinary life and do not necessarily imply severe psychopathology. She also noted a distinction between dissociation, as a psychological defence mechanism, and Dissociative Disorders which are outlined in the DSM-IV-TR. [19] Having seen the defendant for evaluation, and examined the extensive medical reports and the police brief, Dr Reddan noted that his complaints of amnesia, due to dissociation, had become much more extensive, and had changed and elaborated over time, yet without much accompanying evidence of significant clinical distress or marked impairment in social and occupational functioning. She observed that ordinarily Dissociative Amnesia occurs in relation to traumatic events, not generalised amnesia and that a generalised amnesia as reported by the defendant -- 5 of 8 -- 6 would ordinarily be a contra-indication of such a condition. She considered it likely that the defendant had varying degrees of control over the reported episodes and opined that he could “to a degree, either induce or control any tendency to dissociate”. She noted that there was evidence suggesting that he was prone to exaggerate his degree of cognitive and emotional difficulty. Dr Reddan was of the view that the defendant is fit for trial, although he may require assistance. She thought that with the aid of transcripts he should be able to instruct counsel. She stated in her report: “Mr Bennett is not suffering from any specific cognitive impairment, and he has a previous history of Court appearances and participation in trials, which did not lead to serious or permanent adverse consequences to his mental condition. Indeed, his functioning appears to have improved compared to the late 1980’s or early 1990’s. With assistance (eg provision of transcripts at the end of every day), Mr Bennett should be able to instruct Counsel. As the alleged offences refer to a considerable period of time ago, in the ordinary course of events it would be difficult for Mr Bennett to provide instructions, and as is apparent from the transcripts of the committal hearings, even the complainants are somewhat vague in their recollections for details.” Dr Unwin [20] In his report of 9 May 2007, Dr Unwin, a psychiatrist, concluded that the defendant presented some Dissociative Amnesias falling short of a disorder rating, with little observable distress and no social or employment disability arising from the symptoms. He diagnosed a Narcisstic Personality Disorder. During an exhaustive interview with Dr Unwin, the defendant did not show any evidence of absences in spite of the interview touching on sexual matters or matters on which charges are presently being considered. [21] In Dr Unwin’s opinion, the defendant is perfectly able to instruct counsel, although there may be some need for patience, slowness and deliberateness. He considered the defendant’s amnesias were “at best” a mixture of complex determined forgetting and factitious disorder of psychological type and that his lapses were “self-serving and at times less than unconscious.” He noted the defendant was “not unsophisticated in matters of self-hypnosis and dissociation and has practiced these mechanisms.” Dr Unwin also made the observation that the defendant’s DES scores on his testing of 15.7% were not in keeping with serious Dissociative Disorder. Dr Unwin observed that more often than not the defendant’s reasons “for persisting in his lapses of memory were so he could convince the Court that he was unfit to plead and/or instruct counsel.” Dr Unwin concluded: “In essence I am of the opinion that he is perfectly able (with perhaps some difficulty for reasons that vary) to instruct counsel and be examined as to the charges. That he does not remember events many years past is often found in such cases and the inability to remember is often found, particularly for detail. However, an amnesia described by Mr Bennett which is episodic, variable, and at times self-serving is one that does not match either an organic or dissociative type”. Mr Stevenson -- 6 of 8 -- 7 [22] Mr Stevenson, a psychologist, provided a report dated 1 June 2007, having examined the defendant several times since 3 April 2005. He supported the view that he was unfit for trial. Mr Stevenson diagnosed Post-Traumatic Stress Disorder and Dissociative Amnesia. He reviewed the other reporter's opinions and argued that the testing he had organised from the Brain Resource Centre (and its affiliate EEG Resource Institute of the Netherlands) had revealed difficulties with those reports. The tests were apparently computerised versions of many of the tests used by Dr Douglas. Conclusion [23] Of those who provided reports for the purposes of the current reference, only Dr Martin and Mr Stevenson support a psychiatric diagnosis and on the basis of that diagnosis considered the defendant unfit for trial. [24] As to Mr Stevenson, who supported a diagnosis of Dissociative Disorder and indicated that the testing he had arranged showed an abnormality in the brain function could be detected, Dr Douglas noted that some of the data for the testing relied upon by him had not been fully disclosed. I also note that the report of the Brain Resource Centre contained significant disclaimers, a matter which to my mind reduces the weight to be accorded to the testing. Dr Lawrence advised that from a clinical point of view the opinion of Mr Stevenson ought to be accorded little credence. [25] The difference of opinions among the reporting psychiatrists came down to that of Dr Martin on the one hand, who supported the diagnosis of a Dissociative Amnesia or Dissociative Disorder which he felt on the balance rendered the defendant unfit for trial, and that of the other reporters, particularly Dr Reddan who found no such disorder as being present and considered the defendant to be fit for trial. [26] In accordance with the preponderance of the clinical evidence, the advice of the assisting psychiatrists was that the defendant was not suffering from a psychiatric disorder which rendered him unfit for trial. They preferred the opinions of Drs Reddan and Douglas and also that of Dr Unwin, which they saw as bringing a greater forensic focus on the defendant’s history and presentation. Both assisting psychiatrists considered that the difference in opinion could essentially be seen in terms offered by Dr Reddan. Dr Reddan expressed the view that Dr Martin, who is a highly respected psychiatrist, had approached the matter of the defendant’s diagnosis not with a forensic mind, but rather from the perspective of a clinician treating a patient and thus was accepting of the information as it was provided. In taking that approach, he was perhaps more receptive and credulous of the defendant’s information and account and seeking to include them in a pattern of behaviours which he could utilise to make a diagnosis. In that context, as a clinician, he supported the concept that the symptoms the defendant was reporting could be seen as part of the spectrum of a Dissociative Disorder. [27] As Dr Lawrence observed, Dr Reddan was able to detect and elaborate on many of the inconsistencies that there were in both the history and the information, which caused her to conclude that there was no evidence of any clear Dissociative Disorder present, even if there may have been in the past or at times a dissociative experience. -- 7 of 8 -- 8 [28] I found the evidence of Dr Reddan and Dr Unwin particularly persuasive. In the circumstances, I am unable to find on the state of the evidence that the defendant suffers from Dissociative Disorder or Dissociative Amnesia, or any other condition which renders him unfit for trial. Order [29] The findings and orders of the court are: 1. There is a reasonable doubt as to the commission of the alleged offences; 2. The defendant is fit for trial; 3. The proceedings be continued according to law -- 8 of 8 --