Local Court New South Wales Medium Neutral Citation: NSW Police v Williamson [2018] NSWLC 25 Hearing dates: 23 March 2018 Decision date: 12 June 2018 Jurisdiction: Criminal Before: M O'Brien LCM Decision: The application is dismissed and an urgent hearing date will be allocated Catchwords: CRIMINAL PROCEDURE – stay of proceedings - permanent – cognitive impairments – whether defendant fit to be tried – Presser Test – whether defendant suitable for diversion under s 32, Mental Health (Forensic Provisions) Act 1990 Legislation Cited: Criminal Procedure Act 1986, s 202 Justice Legislation Amendment Act 2017 (rep) Mental Health (Forensic Provisions) Act 1990, s 32 Cases Cited: Albon v R (District Court, unreported, 5 February 2016) Director of Public Prosecutions (NSW) v Saunders [2017] NSWSC 760 Director of Public Prosecutions v El Mawas [2006] NSWCA 154 Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129 Eastman v R [2000] HCA 29; (2000) 203 CLR 1 Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23 John Frith (1790) 22 State Tr 307 Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230 Mantell v Molyneux [2006] NSWSC 955 Ngatayi v R (1980) 147 CLR 1 Police v AR (Children's Law News 1 – May 2010, 18 November 2009) Police v Beth [2014] NSW ChC 8 (18 December 2014) Quinn v Director of Public Prosecutions [2015] NSWCA 331 R v Basha (1989) 39 A Crim R 337 R v Dashwood [1943] KB 1 R v HW [2017] NSWLC 25 R v KF [2011] NSWLC 14 R v Littler [2001] NSWCCA 173 R v Mailes [2001] NSWCCA 155; (2001) 53 NSWLR 251 R v Presser [1958] VR 45 R v Rivkin [2004] NSWCCA 7 R v Sexton (2000) 116 A Crim R 173 Smiles v Federal Commissioner of Taxation (1992) 37 FCR 538 Texts Cited: D Howard and B Westmore, Crime and Mental Health Law in New South Wales (3rd ed, 2018, LexisNexis) Category: Procedural and other rulings Parties: NSW Police (prosecution) Stephen Derick Williamson (defendant) Representation: Sgt D Middleton (prosecution) Pennicott & Weir Solicitors (defendant) File Number(s): 2017/00071449 2017/00307578 Publication restriction: Nil Judgment Background 1. This is an application for a permanent stay of proceedings in respect of which Stephen Derek Williamson (the defendant) presently stands charged or, if the court deems it appropriate, to discharge the defendant pursuant to section 32 of the Mental Health (Forensic Provisions) Act 1990 (MHFPA). I have reduced my reasons to writing so that they are clear for the assistance of both the prosecution and the defence. 2. By way of brief background the defendant: 1. Was born in 1958 and will turn 60 next October; 2. Is not presently in a domestic relationship; 3. Has two adult daughters who are the victims in the two sets of proceedings to which I have referred; 4. Is reliant for support upon a disability support pension; and 5. Lives alone in his home which he owns at Batlow. 1. Last year, whilst his daughter Matika Mavis Bell (Matika) was asleep on a lounge at the home of the defendant in Batlow, the prosecution allege that the defendant punched her repeatedly about the head, then left her for a brief moment before returning shortly afterwards, armed with a golf club and proceeded to beat her with it. Matika's injuries were such that she required treatment in hospital. 2. It is also alleged that on a later date that year at the defendant's home, the defendant pushed his daughter Latoya Bell (Latoya) over a chair before beating her with a fire poker for which she also required medical attention. 3. The defendant has been charged with reckless wounding, assault with intent to commit an indictable offence, assault occasioning actual bodily harm and common assault in which the complainant is his daughter Matika. 4. The defendant is also charged with assault occasioning actual bodily harm in which the complainant is his other daughter Latoya. 5. This application is brought because the defendant, through his solicitor, claims that he is unfit to be tried and that, if the court deems it appropriate, he be considered suitable for diversion pursuant to s 32 of the MHFPA. 6. I have prepared this judgment without the benefit of the transcript of the hearing of this application or of the submissions made on behalf of the prosecution and the defence. Course of the proceedings 1. Having regard to the time that had elapsed since the defendant was charged for these offences, it is useful to review the history of these matters in order to put the timing of the application into context. 2. The alleged offences which involve Matika first came before Wagga Wagga Local Court on 8 March 2017. The defendant was in custody and legally represented. He was released on conditional bail and the matter was listed for mention before the Tumut Local Court on 27 March 2017 where the defendant was again legally represented. Pleas of not guilty were entered with respect to each of the charges and brief service orders were made. The matter was listed for reply before that court on 8 May 2017. 3. Time for service of the brief was extended on that day to 6 June 2017 and the matter was again listed for reply on 13 June 2017. The matter was again listed for reply on 10 July 2017 at which time a hearing date was allocated to the matter. On 10 October 2017 however, the hearing was vacated and an order was made to secure the attendance of the complainant who was then in custody for unrelated matters. The new hearing date was set for 30 January 2018. 4. On 15 January 2018, about two weeks prior to the new hearing date, and at the request of the defendant's solicitor, the matter was relisted before me at Tumut Local Court, on an oral application by the defendant's solicitor on the defendant's behalf to vacate the hearing date. The defendant's solicitor informed the court that a concern had arisen with respect to the defendant's 'fitness to plead'. 5. Accordingly, and without objection from the prosecution, the hearing date was vacated, witnesses excused for that day and the hearing with respect to the question of the defendant's fitness to plead together with an application pursuant to s 32 of the MHFPA was listed before me at Cootamundra Local Court on 5 March 2018, being a list day as it was anticipated that the hearing of the application would be relatively short. A copy of a report prepared by Dr Roger Blake dated 19 November 2017, some two months earlier, was provided to the prosecutor and the court in anticipation of the application. 6. Unfortunately, on the day listed for the hearing of that application, the prosecutor advised the court that, having considered the matter further, it was likely that the hearing of these applications would take longer than had originally been anticipated because of the time needed to cross examine Dr Blake. Over the defendant's solicitor's strenuous objection, the hearing of the application was adjourned to Cootamundra Local Court on 23 March 2018 and on that day I reserved my decision to be delivered today at Tumut Local Court. 7. The charge with respect to the alleged offence in which Latoya is the complainant first came before Wagga Wagga Local Court on 12 October 2017. The defendant was also in custody and was legally represented at that time. Bail was granted and the matter was remitted to the Tumut Local Court on 23 October 2017 when the matter was listed for hearing on 13 February 2018. That matter was likewise relisted before me on 15 January 2018 for the same reason as the earlier matter and its history followed the same course. 8. Apart from the first day when the defendant appeared in custody in respect of each of the proceedings brought against him, the defendant has been at liberty on conditional bail and has attended court on each occasion that he has been required to in accordance with his bail. Fitness to plead, to stand trial or to be tried 1. During the course of this application, the term 'fitness to plead' has been used synonymously with the term 'fitness to be tried'. As the learned authors of Crime and Mental Health Law in New South Wales (3rd ed, 2018, LexisNexis) observe (at 283): 'Fitness to stand trial' is the label used to conveniently describe a threshold of capacity of a defendant before criminal proceedings may continue against him or her. 1. In my view either of the terms 'fitness to be tried' or 'fitness to stand trial' is the more appropriate terminology to be used in applications of this kind. Fitness to plead, in other words, to enter a plea of guilty or not guilty, may be an, but is not the only, element of fitness to be tried or to stand trial. Legal issues 1. A number of legal issues arise for determination, namely: 1. Does the Local Court have jurisdiction to hear the application as to whether the defendant is fit to stand trial? 2. Who bears the onus and what is the standard of proof? 3. What remedy is available to the court if the application is successful? 4. What is the correct approach to the issue of fitness to stand trial? 5. What is the evidence? 6. Is the defendant fit to stand trial? 7. Is the defendant suitable for diversion pursuant to s 32 of the MHFPA? Does the Local Court have jurisdiction to hear the application to determine whether the defendant is fit to stand trial? 1. Part 2 of the MHFPA applies specifically to the District and Supreme Courts of New South Wales and not to the Local Court, [1] and accordingly, the Local Court is guided by the common law on this issue. 2. In this regard I note what was said in Mantell v Molyneux [2006] NSWSC 955 at [30], citing R v Presser [1958] VR 45 with approval, in which the court stated that a person is not fit to plead if: … because of mental defect, he fails to meet minimum standards which he needs to equal if he can be tried without unfairness or injustice to him. 1. Having regard to the weight of authority bearing upon the court whenever this question is raised, I am satisfied, and it was not submitted otherwise, that this court has jurisdiction to determine the issues raised in this application. 2. No submissions were made by either the prosecution or defence on this issue but it would appear to be settled law that the Local Court has power to permanently stay proceedings in matters where the court would normally proceed to determine those matters to finality: Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23. 3. In indictable matters, such as the charge of reckless wounding, being one of the offences for which the defendant is presently charged and being a Table 1 offence, the position is not as transparent. In any event I note that there has been no election by the Director of Public Prosecutions in respect of that charge and accordingly, I proceed on the basis that there is no impediment preventing this court from hearing the fitness to stand trial application. Who bears the onus of proof and what is the standard of that proof? 1. The defendant bears the onus to satisfy the court that he is not fit to stand trial. The standard of proof is on the balance of probabilities: see R v Basha (1989) 39 A Crim R 337 where Hunt J said at 338: The onus is upon the accused in such cases to demonstrate that the disadvantage or prejudice which he would suffer during the course of such a trial is in the relevant sense unacceptable to the extent that the trial would be unfair: Barron v A-G (1987) 10 NSWLR 215 at 219. 1. Having regard to the remedies which are available to the court if the application is successful, the Court of Criminal Appeal has expressed the opinion that an applicant for such an "extraordinary remedy" bears a "heavy onus": see R v Littler [2001] NSWCCA 173 per Hodgson JA at [6]. What remedy is available to the court if the application is successful? 1. A question which arises is whether, if the application is successful, this court then proceeds to order a permanent stay of proceedings or to discharge the defendant. In this regard I note the remarks of Adams J in Mantell at [28]-[29]: … Even though, in the case of a charge being heard in the Local Court, there is no statutory enactment either dealing with determination of the question of fitness to be tried or as to what should occur if a person is found unfit to be tried, it seems to me that, where a defendant is found not fit to be tried, he or she must be discharged. So much is the effect of the judgment in Ngatai v The Queen (1980) 147 CLR 1 at 7-8, per Gibbs, Mason and Wilson JJ– "…If the incapacity is due to unsoundness of mind the accused will of course be dealt with in accordance with the provisions of the legislation in force on the subject of mental health, but in a case where there is no mental or physical disability, there may be no statutory enactment under which the accused can continue to be detained. In such a case no doubt he should be discharged." 29 In this case there is no relevant mental disability that would bring the appellant within the provisions of the Mental Health Act and the consequence must be that, if unfit to be tried, she must be discharged; see also Pioch v Lauder (1976) 13 ALR 266. 1. In Police v AR, [2] Marien DCJ sitting as President of the Children's Court, after determining the defendant unfit to plead, made orders dismissing the proceedings and discharged the defendant rather than dealing with the defendant pursuant to s 32 of the MHFPA. 2. In Police v Beth [2014] NSW ChC 8 the defendant, a young person aged 11 years, was diagnosed with Post Traumatic Stress Disorder and Reactive Attachment Disorder. The court refused the application for a permanent stay on the grounds of fitness and considered that the matter was one where diversion under s 32 of the MHFPA was appropriate. 3. Huntsman LCM in R v HW [2017] NSWLC 25, finding that the defendant was unfit to plead (in which the prosecution and defence did not contend otherwise), turned her mind to the question of what orders were appropriate in all of the circumstances of that case. In the interests of time, I paraphrase her observations as follows: 1. If a defendant is determined to be unfit to be tried he or she ought to be discharged; [3] 2. Section 9(c) of the Local Court Act 2007 provides that the Court has "a criminal jurisdiction consisting of the jurisdiction conferred on it by the Act or law with respect to criminal proceedings". 3. There is no specific provision for discharge other than in committal proceedings. Section 202 of the Criminal Procedure Act 1986 provides: 202 Determination by court (1) The court must determine summary proceedings after hearing the accused person, prosecutor, witnesses and evidence in accordance with this Act. (2) The court may determine the matter by convicting the accused person or making an order as to the accused person, or by dismissing the matter. (3) In the case of a matter heard in the absence of the accused person, the court may adjourn the proceedings to enable the accused person to appear or be brought before the court for sentencing. 1. The Local Court may make an order for a permanent stay of proceedings, which is implicit in Mantell (supra) and explicitly stated by the Court of Appeal in DPP v Shirvanian (1998) 44 NSWLR 129; see also Smiles v Federal Commissioner of Taxation (1992) 37 FCR 538. 2. An order for a permanent stay of proceedings involves a test of fairness, and that the test which must be applied involves a balancing process, for the interests of the defendant cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial: see Jago. In matters of the kind for which the defendant is here charged and, having regard to its violent nature, the community's interest in the prosecution proceeding is significant. 3. To justify a permanent stay of criminal proceeding there must be a fundamental defect which goes to the root of the trial: "of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences": see Jago per Mason CJ at [21]. 4. The decision to order a permanent stay involves a discretionary decision by a judicial officer: see Jago per Gaudron J at [13]. 5. A defendant who is determined to be unfit to be tried before the Local Court faces an issue that there is no provision for acquittal by a process available in the District or Supreme Court under the statutory provisions of the MHFPA. 1. In light of these decisions, I apprehend that I would be required to permanently stay the proceedings unless I proceed to determine the application pursuant to s 32 of the MHFPA as the defendant's legal representative urges me to do. 2. I note in passing the remarks of Heilpern LCM in R v KF [2011] NSWLC 14 at [18] – [19]: 18 There are of course practical and evidential problems in the Local Court in dealing with such applications. In the higher courts, the practice is that the Crown arranges for the assessment of the defendant by an expert of the Crown's choosing. That is most unlikely in the Local Court. Thus, usually, the only evidence will be the defendant's psychiatric report and other reports. There are no matters of this type I am aware of where the prosecution has even sought to cross-examine the authors of the reports. 19 There are special reasons to be cautious in dealing with these matters in the Local Court. Firstly, the result of a successful application is that the proceedings are stayed or the defendant is discharged. There is no supervisory regime, treatment plan, conviction, criminal record or detention as in the higher courts. Secondly, there are well known cases where people have successfully feigned physical and mental conditions, which later turn out to be fictional devices to avoid liability. Thirdly, there is no ability to return the matter to court should the defendant not comply with a treatment regime as there is with matters dealt with under s 32. Finally, there is no "seriousness" test in an a stay application - the Local Court deals to finality with matters of increasing seriousness - as there is in a s32 application. What is the correct approach to the issue of fitness to stand trial? 1. Fairness to the defendant is the genesis for the law in this regard. It has been accepted as essential for a fair trial that the defendant understand the nature of the proceedings brought against him or her and that the defendant be capable or participating in those proceedings sufficiently to defend himself or herself (see John Frith (1790) 22 State Tr 307 at 318). In R v Dashwood [1943] KB 1, Humphries J stated: It is a cardinal rule of our law that no man can be tried for a crime unless he is in a mental condition to defend himself. 1. The mental health of the defendant is not the only issue to be considered. As Gaudron J stated in Eastman v R [2000] HCA 29; (2000) 203 CLR 1 at [59]: … the question whether a person is fit to plead may arise for reasons other than mental illness. It may arise, for example, because a person is deaf and dumb or, more generally, because language difficulties make it impossible for him or her to make a defence. 1. The concept is not limited to mental conditions but extends to include intellectual disability: R v Mailes [2001] NSWCCA 155; (2001) 53 NSWLR 251. In R v Sexton (2000) 116 A Crim R 173, Gray J, dealing with South Australian legislation, stated at 184: Unfitness to be tried at common law is not limited to cases of mental illness. There are broader considerations, including one's inability to communicate and participate in the trial process. An inability to communicate or comprehend may be based upon physical disabilities alone, such as hearing and speech impediments. The common law does not require the presence of any psychological or intellectual impairment. 1. The decision of Presser is regarded as the standard for the elucidation of the principles for trying an accused without unfairness or injustice (referred to hereafter as the 'Presser standards') which may be succinctly summarised as stating that the defendant needs to be able to understand what he is being charged with; be able to plead to the charge (which he has done here); understand generally the nature of the proceedings; understand the substantial effect of evidence and be able to make his defence to the charge and he needs to be able to instruct counsel if represented. 2. That decision has been consistently followed by courts in New South Wales and the High Court. [4] Importantly, however, in Presser Smith J observed at 48: … a mere lack of formal education, a mere lack of familiarity with court forms and procedures, would not, of course, render a man unfit to be tried but he may… be held to be unfit to be tried when he is far from being insane in the colloquial sense. 1. In R v Ngatayi (1980) 147 CLR 1, the majority of the court cited Presser with approval and agreed at [8] that the test of capacity or fitness needed to be applied in a 'common sense fashion' and that the defendant 'need not have the mental capacity to make an able defence or to act wisely in his own best interest'. The majority considered at [9] that: … in deciding whether an accused is capable of understanding the proceedings so as to be able to make a proper defence it is relevant that he is defended by counsel. If the accused is able to understand the evidence, and to instruct his counsel as to the facts of the case, no unfairness or injustice will generally be occasioned by the fact that the accused does not know, and cannot understand, the law. With the assistance of counsel he will usually be able to make a proper defence. 1. In that decision, the court took the view that, having regard to the explanation given by the defendant's counsel to the jury about the relevance of intoxication to the question of intent, and that the trial judge had directed the jury on that issue, the fact that the defendant could not understand the law under which he was being tried did not mean he could not make a proper defence with the assistance of counsel. 2. The issue of fitness is one that is outside the adversarial system. As Hayne J observed in Eastman at [294] (footnote omitted): … There can be no trial at all unless the accused is fit both to plead and to stand trial. Because the question of fitness is one which affects whether the accused has the capacity to make a defence or answer the charge, it is a question for the trial judge to consider regardless of whether the prosecution or the accused raise it. In that respect it is a question which falls outside the adversarial system. Indeed, it must fall outside the adversarial system because the very question for consideration is whether there is a competent adversary. 1. In Presser, Smith J said at 48: He needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an enquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel, he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and his counsel, if any. 1. The decision in Mantell concerned an appellant who was charged with an assault which involved the appellant wielding a knife at the victim. The reports tendered to the court revealed that the appellant had a history of mental health issues exacerbated by alcohol abuse and an intellectual disability; was at a significant risk of self-harm; had been admitted a number of times to a psychiatric unit; and was prescribed with Celepram and Largactol daily. 2. The psychologist's report had been prepared after a number of consultations with specialist personnel who had extensive dealings with the appellant over a considerable period of time and the psychologist had interviewed the appellant on a number of occasions. His report contained the following passage: Interviews with [the appellant] regarding an assessment of her understanding of court processes (in particular her foundational and decisional competence) were conducted over several sessions to allow time for rapport to be established. Several interviews also provide a better indication of her ability to retain new information over time. During the sessions, [the appellant] demonstrated some knowledge as to her solicitor's name, but did not understand the roles of the basic elements of the court, such as the prosecutor, judge, jury or what a plea was. Nor was she able to demonstrate an understanding of the words guilty or innocent. Furthermore, [the appellant] was not able to discern between a truth and a lie. It is considered unlikely that [she] would be able to use reasoning to either relate relevant information to her legal counsel or make informed choices about alternate courses of action in making decisions in her defence. Decisions may have been further impeded if she was intoxicated at the time of the offence. [The appellant] has little appreciation of her current legal predicament and was unable to state what outcomes may occur from her impending court appearance. [The appellant] was able to understand the conditions of a bond after it was explained to her." He concluded that the appellant's functional independence was limited to very limited, with her performance comparable to that of an average person aged between nine and ten years. Similar assessments were made of her motor skills, her social interaction and communication skills and her personal and community living skills. 1. The psychologist in that matter reported that he: 1. Was of the view that whilst the appellant understood what she was charged with, she did not understand what it meant and did not understand the possible outcomes; she did not understand the difference between a serious offence and a minor one, having a view that all offences are serious and everything at court would lead to her being imprisoned; although the appellant would say guilty or not guilty she would not know what such a plea meant; she did not understand the difference between the truth and a lie; it is very likely that she would simply be mute; 2. Thought that, due to the appellant's low level of cognitive ability, the appellant would not understand the nature of the proceedings and pointed out that, in the proceedings before the Guardianship Tribunal, where DADHC workers explained to her several times what was happening, it was clear that she did not comprehend these proceedings at all. 3. Thought that the appellant would not be able to follow the course of proceedings as she was unable to follow abstract ideas or events and could not follow sequences, with a poor ability to recall new information or even things that are shown to her. Nor would the appellant follow the substantial effect of the evidence given against her, in particular evaluating it in the light of her own experience of events. Although the appellant could say what did or did not happen she could not, in his opinion, evaluate the significance of what happened and, in particular, her own intentions or motivations at the time, for example the effects of intoxication, any fear of being beaten herself or whether she could have simply departed from the scene. Indeed, he thought that she could not give evidence in chief without being prompted. 4. Thought that she would not be able to give her version of events to the court, would probably be unable to decide what defence to rely on and would have significant difficulties in following cross-examination. 1. The solicitor for the appellant in that matter had given evidence concerning her communication with the appellant over a long period of time, concluding that the appellant did not understand her role as her lawyer, or the roles of the prosecutor or the magistrate, how the court functioned, what "guilty" and "not guilty" mean, and what happens in court. The solicitor said that if the appellant was required to give evidence, she would be stressed, frightened, intimidated and in all likelihood remain mute; she would also be likely to agree with everything put in a leading question and would disagree with anything that her brother said in the witness box. 2. The court found that having regard to the length of her solicitor's connection with the appellant, her evidence ought to be given considerable weight. 3. I have made reference to this material in some detail in order to show the extent to which the appellant sought to satisfy the court of the merits of her appeal. 4. In that case, the prosecution called no evidence, nor did they seek to cross-examine the medical expert. In this application, whilst the prosecution did not call any evidence, the prosecutor did cross examine the author of the report upon which the defendant in this matter relies. 5. The court, in Mantell, found that the learned Magistrate erred in finding that the applicant was fit for trial and said at [32] – [36]: 32 It is evident that the prosecution and, for that matter, the learned Magistrate accepted that the evidence of both Mr Hudman and Ms Pikett was both accurate and reliable. In dealing with that material, as appears from the extract of the learned Magistrate's judgment which I have set out above, his Honour concluded that the appellant had some ability to understand the proceedings, noted that she had given a version of events and, I think, accepted that she was handicapped both in giving evidence and responding to other evidence given in the proceedings, these being matters which the court "would have to take into account". 33 It seems to me, with respect, that the learned Magistrate erred in considering that a balancing process was involved in determining whether it would be fair to conduct a trial in the circumstances. If a defendant is not fit to stand trial in the Presser sense, the trial is by virtue of that very fact necessarily unfair and the public interest in the trial of the person charged with criminal offences must give way. Some elements of unfairness may be able to be overcome by, for example, requiring the cross-examiner not to put leading questions to the appellant, but such an order strikes me as involving an inappropriate interference with the conduct of the trial by the prosecution. It is difficult to think of any other orders that might compensate for the fundamental limits in understanding and ability to communicate, especially an ability to communicate in the court environment, which were identified by Ms Pikett and Mr Hudman. 34 As the Crown Advocate pointed out during submissions in this Court, the learned Magistrate did not make any finding that the appellant was unfit for trial. His Honour approached the question facing him as being whether he could, by making some adjustments in the way in which the proceedings were undertaken, ensure that the trial was fair. 35 In my view, the question of fitness for trial is fundamental. In some cases, adjustments can be made to overcome the defendant's unfitness, as by providing a deaf person with a signing interpreter. But this is not to make the trial of a person who is unfit for trial a fair one: it is to remove the unfairness. 36 In my respectful opinion, there were no orders that the Court could have made that were capable of overcoming the appellant's unfitness. Where a defendant does not understand the nature of a plea, the elements of the charge and the essential nature of the proceedings, it does not make such a trial fair even though he or she is able to give a version of events. At all events, a fundamental problem identified both by Mr Hudman and Ms Pikett was that the appellant was simply not in a position to give that version of events in the court environment and deal with even an entirely proper cross-examination. Sympathetic allowance for the appellant's problems in this regard does not overcome the fundamental unfairness which her unfitness in respect of these matters demonstrates. This is not less so because it appears, as it happens, that the appellant has a good defence to the charge which might well result in her acquittal. 1. In Police v AR, the court was considering an application under s 32 of the MHFPA and for a permanent stay in relation to a young person charged with serious offences, namely a carjacking, a serious assault and a daylong deprivation of liberty, some of which were clearly matters to be determined in the Children's Court, and others which may have resulted in the young person being committed to higher courts. Accordingly, there were jurisdictional issues that are not relevant in this case. 2. There were reports from a number of eminently qualified health and care professionals, one of whom found that the applicant had a mental age of a pre-school child or a child in the early years of primary school. Marien DCJ observed (at [21]): Dr Hayes is of the opinion that the defendant is unfit to plead. She states that he does not know the charges against him and does not understand what a plea of guilty or not guilty means. She states that he did not in any way understand what the court proceedings were about. She states he does not show any capacity to follow the course of the proceedings or to be able to remember or understand any evidence which may be given against him. She expresses the opinion that he cannot make his defence or instruct his counsel or solicitor about what his version of events is, because he cannot remember anything about what occurred. As I have said, the prosecution did not request her or any of the other experts who prepared reports to be present for cross-examination. 1. Marien DCJ went on to observe (at [24]) that Dr Hayes was supported by other health practitioners, including the DADOC Psychiatrist Dr Dossetor: Dr Dossetor states that at his review of the defendant in May 2009 he observed that he did not recognise any of the familiar faces, did not remember what he had done from day to day and had no capacity to plan his day or to anticipate the future. Dr Dossetor states, "AR clearly has no capacity to know whether something is right or wrong." Dr Dossetor states that he generally observes the defendant's moral development as like that of a two to three-year-old child. 1. In that matter, Marien DCJ observed (at [25]) that junior counsel for the applicant had attested to her attempts to obtain instructions: She deposes that she has not been able to do so. Ms Cook deposes that while she used basic English and basic concepts during those conferences, it appeared to her that the defendant was not able to understand her role as his lawyer, was not able to understand the role of the prosecution or the magistrate, was not able to understand the nature of the charges laid against him or the nature of the proceedings or the effect of the evidence against him; was not able to understand what is meant by pleading guilty or pleading not guilty, was not able to make his defence or answer the charges and was not able to provide a version of events or instructions. She also deposes that the defendant has not been able to follow her advice or respond appropriately when questioned. The prosecution did not seek to cross-examine Ms Cook. 1. Marien DCJ concluded: 56. However, it is to be remembered that the Presser tests do not include whether the defendant has some degree of memory loss or whether the defendant has difficulty verbalising demands or is able to independently make decisions. The Presser tests are directed to the question whether a defendant comes up to minimum standards which the defendant needs to attain before he or she can be tried without unfairness or injustice. 57. As I have previously stated, under the Presser tests the defendant needs to understand what he or she is charged with, needs to be able to plead to the charge and to exercise the right of challenge. The defendant needs to understand generally the nature of the proceedings and needs to be able to follow the course of the proceedings and be able to make their defence or answer the charge, instruct counsel and if necessary, tell the court their version of events. On these specific issues, the expert evidence, as well the unchallenged evidence of Ms Cook, all point in one single direction, namely, that the defendant is unfit to plead and is incapable of understanding and participating in the criminal proceedings. 1. It should be noted that the court drew a clear distinction between having "some degree of memory loss" and having difficulty in "verbalising" demands and the minimum standards of the Presser test. 2. I was also referred to what may be described as a cautionary decision of Albon v R (District Court, unreported, 5 February 2016 – file number 2015/52741) in which Scotting DCJ considered an appeal from a decision of the Local Court at Manly in which the magistrate, after dismissing an application under s 32, went on to consider the appellant's application seeking a permanent stay, submitting that he was not fit to be tried having regard to the decision in Mantell. 3. The appellant relied upon a report prepared by a psychologist which opined that the appellant suffered from mild level intellectual disability having significant neurocognitive deficits; was highly manipulative and unable and unwilling to accept responsibility for his behaviour and was unable to give instructions to his lawyers by reason of the manipulative aspect of his behaviour, his poor short term memory and his inability to concentrate for more than about an hour at a time. 4. The learned magistrate in the Local Court had rejected the opinion expressed in the report based upon inconsistencies between the appellant's activities described in the report and the opinion. The magistrate considered that it was possible for the appellant "to properly give instructions". 5. Scotting DCJ determined that the appellant was unfit to be tried on the basis that, inter alia, the psychologist's report was uncontested and that the basis for the opinion expressed in that report "was properly set out in the report" stating that "it was not open to the magistrate to [and I interpolate the words 'reject the'] opinion of Dr Lennings where the prosecution did not seek to challenge it by either requiring Dr Lennings for cross examination or putting an argument to that effect." 6. These decisions, some of which are binding upon me, and others which are authoritative, must inform my approach to this application. What is the evidence? 1. The defendant relied solely upon an 8 page report prepared by Dr Roger Blake of Wagga Wagga Psychological Services dated 19 November 2017 ("the report") together with his curriculum vitae. His medical notes were not produced and whilst not formally called upon Dr Blake was asked if he had brought them with him when cross examined. Dr Blake confirms (at p 2) that he was commissioned to assess the defendant's fitness to be tried and to express an opinion with respect to the question of whether the defendant qualified for consideration by the court for an order to be made pursuant to s 32 of the MHFPA and report accordingly. 2. Dr Blake saw the defendant once and did not consult with any other health care professional. He states (at p 1) that at the time of the interview he made the defendant aware of the nature and purpose of the assessment (which he says was to report on his mental fitness to be tried) and explained the process in basic terms that he could understand. No further elaboration was provided. The report itself is characterised by brevity and paucity of detail but in any event offers opinions and conclusions about the defendant without expanding in any great detail about how those opinions and conclusions were derived or reached. 3. Dr Blake, with the assistance of named support persons who were present at the time of interview (the date for which is not specified) but who are otherwise not identified and for whom I have no other information, elicited a short and limited history from the defendant, describing him as a vague historian with an unreliable long term memory. He characterised the defendant's childhood and adolescence as "emotionally impoverished"; expressing no surprise that as a result the defendant commenced illicit drug use and alcohol consumption at a young age. 4. Often in the care of his maternal grandparents, the defendant became embroiled in juvenile crime and spent some time at Boys Town in Sydney whilst at the tender age of 10 years, from which he had escaped, eventually finding himself living and working on a farm in North Wagga Wagga at age 13 years whilst his family thought he was still at Boys Town. 5. It was reported that the defendant had worked as a concreter but now receives the Disability Support Pension although the defendant is said not to know why. The author assumed it was because of his "apparent intellectual disability" which he further assumed arose from drug and alcohol abuse. The defendant now lives in his home at Batlow which he owns (my emphasis). 6. At the time of interview, the defendant impressed Dr Blake as oriented in time and place with "no formal thought disorder" although Dr Blake observed that the defendant was "difficult to engage", was often vague and difficult to follow. He reports that memory degeneration was apparent and likely to be alcohol related. Long term memory was apparently inconsistent and his working memory, i.e. capacity for storing information and short-term recall was poor. Dr Blake assessed his ability to engage in higher-level conversations of a complex nature and to rapidly process information as limited (my emphasis). 7. After conducting a series of tests upon the defendant for the purposes of preparing the report, Dr Blake reported that the results of that testing revealed that: 1. the defendant was operating "within the borderline moderate intellectual disability level of functioning". He reported that: "His low verbal based scores denote problems in vocabulary and the understanding of higher order language concepts, i.e. accurately following a complex conversation and being able to meaningfully take part" (my emphasis); 2. the defendant struggled with all three subtests and he was often confused. All of the scores from the subtests were well below the mean-average (my emphasis). 1. Dr Blake opined that significant memory degeneration and cognitive impairment is apparent from which he deduces that the defendant was incapable of being able to follow the trial process or to accurately instruct counsel. Dr Blake reports unequivocally that "He has impaired concentration, memory and mental processing capacities" without expanding on the extent of his impairment (my emphasis). 2. Addressing what he described as each of the Presser criteria, Dr Blake concludes that the defendant: 1. With respect to being able to plead to the charge, that he is not able to effectively enter a plea, with full and informed understanding; 2. With respect to being able to exercise his right to challenge (as Dr Blake perceives it) the defendant does not have the expressive language skills or advanced intellectual ability to gain clarification if he needed – quite frankly I have difficulty understanding what Dr Blake is here referring to as this standard appears to address the defendant's right to the challenge of jurors; 3. No longer has the intellectual facility to fully comprehend what he is charged with. In this regard Dr Blake added: "In my attempt at questioning he was unaware of why he was being charged. He did not know the court date, much less understand the legal processes involved". 4. Is unable to follow proceedings or understand what is going on in court on the basis that the defendant: "appears to live moment by moment and is a very concrete, literal and impaired person". There is no expansion offered about those descriptors. 5. Is not able to effectively understand the substantial effect of any evidence that may be given against him in court. Dr Blake expressed the view that the defendant "would not recall vital information that is relied upon in court (significant working memory deficits in line with cognitive degeneration)." 6. Is easily confused because of his significant cognitive degeneration and his memory deficits and these neurological factors impede his ability to appropriately assess information at a trial and provide instructions to his lawyers thus rendering him incapable of "making his defence". Dr Blake unhelpfully opines that his rights to natural justice would be compromised. With unfeigned respect to Dr Blake, this opinion ventures into matters about which the defendant's legal representatives ought properly to make submissions to this court and about which this court is required to make a determination. 7. Is incapable of understanding court proceedings nor capable of letting the court know his version of the facts. Dr Blake reports that his working memory is poor and unreliable according to the results of psychometric assessment. 1. Accordingly, Dr Blake concludes that the defendant is not fit to be tried on the basis that he is unlikely to fully comprehend what he is charged with in a legal context, not able to effectively enter a plea with full and informed understanding, is unable to follow proceedings or understand what is going on in court nor understand the substantial effect of any evidence that may be given against him in court thus concluding that he would not recall vital information that is relied upon in court and that his memory impairment and cognitive degeneration render the defendant incapable of understanding court proceedings (my emphasis). 2. In his evidence in chief Dr Blake told the court that he had looked at the record of interviews given by the defendant to police and said, having regard to the answers given by the defendant to questions put to him, that there was an impoverishment in his responses characterised by incoherence and vagueness making his evidence unreliable and proposed that the defendant was highly "suggestible" by saying what he thinks might have occurred when he has no recollection of events and opined that his cognitive functioning was unlikely to improve. Interestingly, Dr Blake omitted to make any reference in his report to the answers given by the defendant in his records of interview with police to support his conclusions in this regard. I will say more about that later in my judgment. 3. He maintained that the defendant was not mentally ill but suffered from a cognitive disorder. Dr Blake considered that the defendant might benefit from an "anti-abuse" medication regime to reduce the risk of re-offending. His cognitive disability was not amenable to medication but his problems associated with substance abuse could benefit from prescribed medication taken together with the defendant not compounding the problem by allowing himself to become intoxicated or engaging in substance abuse. He could also benefit from a cognitive skills program including consequential thinking. 4. Dr Blake was cross examined by Sergeant Middleton for the prosecution on the contents of his report. In cross examination, Dr Blake confirmed that his report followed one consultation taking approximately two and a half hours to undertake. He denied having told the defendant the report was being prepared to determine his fitness to plead. I do however note what Dr Blake states in his report to be its purpose. 5. At the time of consultation, the defendant presented to Dr Blake with signs of restlessness, agitation and discomfort. He appeared to hold unrealistic fears about the process which his brother is said to have confirmed. Dr Blake said that he had told the defendant that the tests were for the purpose of assisting his solicitor with respect to his defence. Some of the tests which he gave were designed to be conducted more quickly than other more detailed tests but ultimately the four sub-tests were designed to produce a more precise intelligence quotient. 6. Dr Blake was thoroughly cross examined with respect to the integrity of the testing procedures carried out during his assessment of the defendant which he had relied upon to arrive at the base scores from which he drew his conclusions – apart from his own assessment of the defendant at the time which he said also confirmed the test results. 7. Dr Blake told the court he was aware of the facts with respect to both matters for which the defendant was charged. In relation to the offence concerning Marika, Dr Blake said that the defendant gave him a version of the events in which he had told Dr Blake that he had been trying to "restrain his daughter". He had given an interview to police some four days afterwards. The defendant showed some insight as to what had occurred. Dr Blake rejected the suggestion that the defendant's memory of the events in question "was not too bad" but rather that he was open to suggestion and that his insight was questionable. 8. Dr Blake told the court that the defendant's memory was "so bad he had trouble remembering events the day before." He had some memory of the events four days later when speaking with police but Dr Blake was unable to state with any degree of specificity whether this was due to cognitive impairment or memory impairment. In any event, his memory was piecemeal. In response to the suggestion that the defendant was a malingerer he told the court that if that was the case he would have expected a more spontaneous account of the events from the defendant. 9. In re-examination, Dr Blake adhered to his evidence in chief concerning the Presser standards relevant to the question of the defendant's fitness to plead and said he 'believed' the defendant did not have the capacity to follow the evidence nor the proceedings in court in a way that enabled him to instruct his legal advisers. He proffered that the interplay between his cognitive impairment and his memory impairment meant that there were significant gaps in his short term memory with the result that there are broader facts which he would not recall. 10. Dr Blake's report also addressed the question of whether the defendant fell within the criteria to be considered for an order under s 32 of the MHFPA. Dr Blake offered the following opinion on this aspect: In my expert opinion, it is likely that Mr Williamson has both frontal lobe and temporal lobe damage which impacts upon social behaviour, personality, problem solving, ability to focus/concentrate, problems with short term and long-term memory. In my opinion, at the time of the alleged commission of the offences to which these proceedings relate, Mr Williamson was suffering from a mental health condition. He was suffering from a mental health condition for which treatment is available. Mr Williamson is unlikely to be able to engage in any form of counselling. He is unlikely to benefit from therapy due to his intellectual disability. Treatment may be best coordinated by his GP. 1. Dr Blake continued with his clinical opinion on p 5 of his report: Mr Williamson has an intellectual disability which meets a clinical level diagnosis. In my opinion, during the period of his offence, Mr Williamson's condition of an intellectual disability has impacted upon his capacity to engage in advanced consequential thinking, moral reasoning and impulse control. It is likely that when Mr Williamson becomes angry he cannot cope, he then seems to react impulsively without pause for thought. I recommend a treatment option under section 32 which supports Mr Williamson being discharged into the care of his long term General Practitioner in Tumut (Dr Haider), who I personally know and have liaised with. Mr Williamson needs firm direction from the court to comply with a treatment plan. With his support person's present, I made sure that Mr Williamson understood the implications of a treatment plan under section 32 and he has agreed to the conditions of this plan as outlined in Annexure A. Records of interview 1. The prosecutor tendered transcripts of two records of interview made between the defendant and investigating police - without objection. The first interview was made on 7 March 2017 commencing at 8.30pm. It took place on the evening of the same day as the alleged offences. The defendant was asked a number of closed-ended questions at the commencement of the interview to which he gave 'yes' or 'no' answers where appropriate. He was also asked a number of open-ended questions to which the defendant gave more expansive answers. [5] He provided a number of "no comment" responses to questions which went to the crux of the allegations made against him. [6] Indeed, in reply to a question about the alleged assault the defendant asks a question in reply suggesting to investigating police that the accusation was incredulous. [7] 2. After a recording of a DVEC statement made by the complainant, his daughter Matika, concerning the alleged offences had been played; further open-ended questions were put to the defendant about his daughter's version of events to which the defendant replied: "I've got nothing to say". [8] He told police that Matika had been at his premises that day. Many of the answers he gave were full and meaningful using his own knowledge or feelings in order to reply to the questions put to him. [9] 3. I did not perceive any impoverishment of response or a piecemeal memory to which Dr Blake refers in his report and indeed, the defendant appears to adopt a cautious approach to questions put to him with respect to specific allegations as opposed to an inability to recall the events earlier that day. 4. In relation to the second interview conducted by police with the defendant on 11 October 2017, the replies by the defendant to open-ended questions put to him by police were in many instances expansive and appeared to be informed by his knowledge of those events. [10] Accordingly I am not 'ad idem' with Dr Blake when he gave evidence that the defendant was highly suggestible and may say 'yes' to questions in the absence of an intact memory. He did not impress as confused or unable to recall events. Is the defendant fit to stand trial? 1. The defendant submits that he is not fit to plead or to stand trial. In support of that submission the defendant relies solely upon the opinion expressed by Dr Blake in his report. There is no other report which challenges the findings made by Dr Blake and he adhered to the conclusions to which he had come to about the defendant with respect to the Presser standards, namely that the defendant is not fit to be tried. 2. It should be noted that in arriving at his conclusions, Dr Blake uses equivocal language, examples of which I have already highlighted above. 3. I note that Dr Blake's opinion was reached after the application of a test from which the author indicates that the defendant "is operating within a borderline moderate intellectual disability level of functioning. His low verbal scores denote problems in vocabulary and the understanding of higher order language concepts, i.e. accurately following a complex conversation and being able to meaningfully take part" (my emphasis). The results following further sub-tests undertaken by the defendant which "were well below the mean-average" which in Dr Blake's view permitted him to rely upon them as "a reliable indicator of short term memory recall." 4. It is not apparent from Dr Blake's report as to whether the defendant was able to provide his version of what had transpired nor whether he had been asked. There is likewise nothing in his report which suggests whether the nature of the proceedings, the role of the magistrate, the prosecutor, an oath or sentencing was ever put to him as part of the assessment was ever put to him. 5. The defendant's solicitor, in his opening remarks, advised the court that the defendant's ability to follow the proceedings was the 'main issue' of concern, as well as his understanding of what is going on in court and that the defendant relied upon the conclusions reached by Dr Blake in his report addressing the Presser standards or criteria. 6. The defendant's solicitor submitted that there was no expert evidence adduced to qualify the methodology adopted by Dr Blake in reaching his conclusions and that in the absence of evidence contradicting Dr Blake this court ought to accept his opinions and conclusions unreservedly. He reiterated that the primary concerns were the defendant's ability to follow proceedings and to let counsel know his instructions. He reminded the court that Dr Blake told the court that the defendant had a capacity to remember some things but his responses suggested an impoverishment of thought and a piecemeal memory. There was no evidence of what could be done to remedy or address his cognitive functioning to enable an understanding of court processes, to give evidence; in short to conduct his defence. The defendant's solicitor ultimately submitted that Dr Blake's views ought to be accepted as "all the boxes were ticked". 7. The defendant's solicitor further submitted that with respect to the section 32 considerations, the Presser tests were relevant to the exercise of the court's discretion. My attention was specifically directed to the observations of Scotting DCJ in Albon (supra) at [29]: As McColl JA pointed out at [3] in El Mawas, dealing with the matter pursuant to section 32 does not mean that the person being dealt with is not exposed to punishment. Whilst an order under section 32(3) is not custody in the strict sense, it may involve the imposition of conditions restricting a discharged person's freedom of movement and actions. Compliance with those conditions is ensured by the court retaining a supervisory jurisdiction for 6 months after the conditional order is made. 1. In reaching the determination with respect to this application, I have considered that report and the responses of the defendant contained within the transcripts tendered by consent. 2. It is apparent from a review of the transcript of the two electronically recorded interviews that the responses made by the defendant to questions put by investigating police that the defendant understood the nature of the offenses for which he had been arrested and that he has a version of events about which he can instruct counsel. I am not satisfied that what Dr Blake describes as: … his memory degeneration and diminished cognitive capacities render him incapable of understanding court proceedings or to let the court know his version of the facts" satisfies the Presser standards. I may take judicial notice, as indeed did Magistrate Heilpern in R v KF (supra) at [39] that "clients often cannot provide counsel with such instructions unaffected by cognitive difficulties. 1. Dr Blake's opinion as to whether the defendant is unfit to be tried is not conclusive. This is a judicial determination rather than a medical one. The value of Dr Blake's report lies in his observations and testing of the applicant, his discussions with those present, whose qualifications to express a view are by no means established, and the appraisal of any other medical material, of which there is none, to make conclusions as to the defendant's state of mind. 2. There are notable and significant differences between the evidence in this matter and the evidence adduced in Mantell and AR. In this application there is a notable lack of evidence from the defendant's legal representatives and his general practitioner. There is no evidence of guardianship or of an ability to distinguish the truth from a lie. Dr Blake had only one appointment with the defendant. In Mantell and AR the corroborated evidence was that the applicant did not understand the difference between a guilty plea and a not guilty plea, the role of defence counsel, or the roles of the prosecutor or magistrate, what happens in court and the outcome of the proceedings. A specific mental age was arrived at in each case – something specifically absent in this case. 3. In my view the observations of Heilpern LCM in KR at [43]-[45] are most apposite to this application: Defendants come in all shapes and sizes, some with good memories, and some with poor. Some defendants have high cognitive function, and some have low. Some are colour-blind, hopeless at calculating distances and cannot estimate time in minutes. For many defendants without English as their first language they are inhibited in understanding the nuances of prosecution witnesses, even with interpreter assistance. There is much in the literature regarding the dangers of asking leading questions, eye contact and the trial process with unsophisticated aboriginal defendants. For the uneducated, expert evidence often flies completely over their head. Under pressure, many defendants find it difficult to remember important matters. These are all matters that may disadvantage defendants, but they do not make for an unfair trial. It is for this reason that the majority of the High Court in Ngatayi v R (1980) 147 CLR 1, said that the test of capacity or fitness needs to be applied in a "common sense fashion" and that the defendant "need not have the mental capacity to make an able defence or to act wisely in his own best interests". In my view, this case is typical of where a person's memory is fading as a result of Alzheimer's disease. That is a tragedy; however it does not make for an unfair trial. The trial may need to have more time allocated than normal, there may need to be breaks to allow counsel to work through evidence and obtain instructions more slowly and cross-examination will need to be more cautious and perhaps more gentle than usual. Allowances such as this can easily be made. 1. Accordingly, I am not satisfied on balance that the Presser standards have been met or that there could not be a fair trial for this defendant. Is the defendant suitable for diversion pursuant to s 32 of the MHFPA? 1. The next matter which I must now turn to is whether or not the defendant ought to be considered as suitable for an order pursuant to s 32 of the MHFPA. 2. In respect of this application the defendant again relies upon the opinion expressed by Dr Blake in his report in which he states that … it is likely that Mr Williamson has both frontal lobe and temporal lobe damage which impacts upon social behaviour, personality, problem solving, ability to focus/concentrate, problems with short and long-term memory. In my opinion, at the time of the alleged commission of the offences to which these proceedings relate, Mr Williamson was suffering from a mental health condition…. for which treatment is available. Mr Williamson is unlikely to be able to engage in any form of counselling. He is unlikely to benefit from therapy due to intellectual disability. Treatment may be best coordinated by his GP. 1. The report continues: Mr Williamson has an intellectual disability which meets a clinical level diagnosis. In my opinion, during the period of his offence, Mr Williamson's condition of an intellectual disability has impacted upon his capacity to engage in advanced consequential thinking, moral reasoning and impulse control. It is likely that when Mr Williamson becomes angry he cannot cope, he then seems to react impulsively without pause for thought. 1. Dr Blake proceeds to recommend a treatment option under s 32 which supports Mr Williamson being discharged into the care of his long-term General Practitioner. He adds: Mr Williamson needs firm direction from the court to comply with a treatment plan adding: I made sure Mr Williamson understood the implications of a treatment plan to which the defendant agreed although how this was achieved having regard to his perceived intellectual disabilities is not clear. 1. Section 32(1)(a) of the MHFPA is now in the following terms: Persons suffering from mental illness or condition (1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate: (a) that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate): (i) cognitively impaired [NOTE: this was amended in August 2017 from the former term 'developmentally disabled'], or (ii) suffering from mental illness, or (iii) suffering from a mental condition for which treatment is available in a mental health facility, but is not a mentally ill person, and (b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law… 1. The amendments saw the insertion of a definition of "cognitive impairment" in section 32(6): "cognitive impairment" means ongoing impairment of a person's comprehension, reasoning, adaptive functioning, judgment, learning or memory that materially affects the person's ability to function in daily life and is the result of damage to, or dysfunction, developmental delay or deterioration of, the person's brain or mind, and includes (without limitation) any of the following: (a) intellectual disability, (b) borderline intellectual functioning, (c) dementia, (d) acquired brain injury, (e) drug or alcohol related brain damage, including foetal alcohol spectrum disorder, (f) autism spectrum disorder. 1. The wording of section 32(3)(b) was amended and now reads as follows: The Magistrate may make an order dismissing the charge and discharge the defendant: (a) into the care of a responsible person, unconditionally or subject to conditions, or (b) on the condition that the defendant attend on a person or at a place specified by the Magistrate: (i) for assessment or treatment (or both) of the defendant's mental condition or cognitive impairment, or (ii) to enable the provision of support in relation to the defendant's cognitive impairment, or (c) unconditionally 1. Section 32(3)(b) previously stated: (b) on the condition that the defendant attends on a person or at a place specified by the Magistrate for assessment of the defendant's mental condition or treatment or both, or... 1. The Second Reading Speech for the amending Act, the Justice Legislation Amendment Act 2017, read as follows: Schedule 1.10 amends the Mental Health (Forensic Provisions) Act 1990 to update old terminology to align with current understandings of cognitive impairment and to ensure that people with cognitive impairment can be diverted into assessment, treatment and support. Section 32 of the Act allows magistrates to divert people with cognitive and mental health impairments from the criminal justice system. The amendment makes it clear that this power is not limited to developmental disabilities and includes other forms of cognitive impairment. The amendment will support a two-year pilot of the Cognitive Impairment Diversion Program commencing later this year. The program is aimed at people with cognitive impairment who appear before the Local Court for early low-level offending. The program will provide a pathway for people assessed as having a cognitive impairment, who need supports related to their disability. 1. That passage of the speech makes clear Parliament's intention for diversion of those offenders with cognitive impairments who are early low-level offenders. It raises a question as to whether this court should divert serious offenders who are cognitively impaired and repeat offenders. 2. The discretion to be exercised by a magistrate to divert under s 32 requires weighing of different interests, including the interest of a defendant in receiving treatment and the public interest in those charged with criminal offences being dealt with according to law. Matters which would inform that discretion would include the seriousness of the offence(s), community safety, the limited duration of an order pursuant to s 32 which is 6 months, the efficacy and specificity of a treatment plan as well as general and specific deterrence in sentencing. [11] 3. It was observed by the Law Reform Commission in its Report 135 – People with cognitive and mental health impairments in the criminal justice system: Diversion that the more serious the offending behaviour, the less likely a s 32 order would be made. The Local Court increasingly deals with serious offences including personal violence (Table 1 offences) which, if dealt with on indictment (on election by the Director of Public Prosecutions, or the defendant), attract lengthy sentences. 4. Offences such as recklessly cause grievous bodily harm can be dealt with to finality in the Local Court, and are commonly prosecuted in the Local Court. These matters are mentioned as an example to demonstrate the risk posed to members of the community by some of the offenders who appear before the Local Court. 5. I turn now to a consideration of whether a s 32 order should be made in the present case. I have considered this issue in light of the foregoing discussion. I am satisfied that the defendant meets the definition of a person with a cognitive impairment, as defined in the amended s 32. 6. The question now is whether it is appropriate to divert him pursuant to s 32(3)(b)(ii) of MHFPA, or to deal with him, otherwise in accordance with law. There are real questions as to the efficacy of any treatment/support services for his cognitive impairment in preventing reoffending and protecting the community. This is particularly concerning given the recommendations and concerns raised in Dr Blake's report. Section 32 requires me to balance various interests, as set out above. Clearly it is in the defendant's interest that he confers with his health care professional for assistance to avoid partaking in the use of illicit drugs in order to avoid reoffending. 7. In relation to the balancing of interests to determine whether a diversionary course under s 32 should be undertaken as opposed to the defendant being dealt with according to law, in addition to considering the interests of the defendant in receiving support/treatment, I am required to consider the public interest. In considering the public interest it is appropriate to consider community safety, and in the present case this is an important consideration given the risk the defendant poses to members of the community. 8. The treatment plan prepared by Dr Blake proposes the following treatment to address the defendant's offending behaviour: 1. Mr Stephen Williamson must attend his general practitioner (Dr Tedo Haider) for review on a monthly basis or if required, at a more frequent basis as determined by his general practitioner based on his clinical need for treatment for substance abuse. 2. Mr Stephen Williamson must adhere to treatment recommendations with respect to prescribed medication as directed by his general practitioner, which may involve medications such as Naltrexone in order to reduce both illicit drug or alcohol cravings. 1. Reduced to its essentials, Dr Blake's treatment plan is simply that the defendant attend upon his General Practitioner monthly and take any medication which might be prescribed by his health care professional in order to address his substance abuse cravings. Presumably, this limited treatment plan acknowledges what Dr Blake had earlier expressed, namely that there was no treatment which could be provided to address what he deduced was the defendant's cognitive and memory impairment. 2. On balance, noting what Dr Blake identified as the defendant's cognitive deficits, which on his analysis cannot be treated, taking into account the limited duration of an order under s 32 and the purpose to which treatment is directed, namely illicit drug and alcohol cravings, and the seriousness of the offences for which the defendant stands charged, I am of the view, balancing all of the competing interests as I am required to do, that a s 32 order would not be appropriate in the present circumstances. Determination 1. Accordingly, I am of the view that the application for a permanent stay of proceedings should be dismissed and that the defendant is otherwise not suitable for diversion under s 32 of the MHFPA. Orders 1. The application is dismissed; and 2. An urgent hearing date be allocated. Magistrate M O'Brien Tumut Local Court 12 June 2018 ********** Endnotes 1. See s 4, MHFPA 2. 18 November 2009. See Children's Law News 1 – May 2010 3. See Mantell (supra), Eastman v R [2000] HCA 29; (2000) 203 CLR 1; Ngatayi v R (1980) 147 CLR 1 4. See R v Ngatayi (1980) 147 CLR 1; Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230; R v Mailes (supra); R v Rivkin [2004] NSWCCA 7 at [279] 5. For example, answers to questions 40-44, p 6, ERISP dated 7 March 2017 ('first ERISP') 6. For example, answers to questions 47-49, pp 6 and 7 and questions 108-113, p 15, first ERISP 7. Answer to question 114, p 15, first ERISP 8. Answer to question 55, first ERISP 9. For example, pp 8 -14, first ERISP 10. For example, answers to questions 39-66, ERISP dated 11 October 2017. 11. See DPP v El Mawas [2006] NSWCA 154; Quinn v Director of Public Prosecutions [2015] NSWCA 331; Director of Public Prosecutions (NSW) v Saunders [2017] NSWSC 760 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 August 2020