District Court New South Wales Medium Neutral Citation: R v Hume (A pseudonym) [2021] NSWDC 123 Hearing dates: 15 April 2021 Date of orders: 15 April 2021 Decision date: 15 April 2021 Jurisdiction: Criminal Before: Grant DCJ Decision: The accused is unfit to be tried. Catchwords: Unfitness – fitness test – inquiry- Mental Health and Cognitive Impairment Forensic Provisions Act – Criminal Procedure Legislation Cited: Crimes Act 1900 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 Mental Health (Forensic Provisions) Act 1990 Cases Cited: R v Presser [1958] VR 45 Kesavarajah v The Queen (1994) 181 CLR 230 Category: Procedural rulings Parties: Regina (Crown) Hume (Accused) Representation: Counsel: Mr Pincott (DPP) Solicitors: Ms Murphy (DPP) Ms Murray (Legal Aid) File Number(s): 2019/00350425 Publication restriction: Non-publication order in relation to the name of the accused and the complainants. EX TEMPORE Judgment INTRODUCTION 1. HIS HONOUR: Mr Hume is 86 years of age. On 11 March 2021 he was arraigned on a three count indictment alleging sexual intercourse with a child under 10 contrary to s.66A(1) of the Crimes Act 1900. The complainant at the time of the alleged offences was the granddaughter of the accused and aged six. The offences are alleged to have occurred between June and October 2019. He was interviewed in November 2019 and is currently on remand at Long Bay Correctional Centre. 2. The court has received three reports namely Dr Susan Pulman forensic psychologist and clinical neuropsychologist dated 25 August 2020 and Jessica Pratley clinical and forensic psychologist dated 25 January 2021 and 12 April 2021. 3. Those reports call into question the fitness of the accused to face trial. The matter is to be dealt with pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 which prescribes criminal procedures for the Supreme and District Court for persons affected by mental health and cognitive impairments. The act replaced the Mental Health (Forensic Provisions) Act 1990 and commenced on 27 March 2021. 4. The court must conduct an enquiry to determine whether a defendant is unfit to be tried for an offence as soon as practicable: s 42. 5. The enquiry procedures are set out in section 44 and include the following; 1. The determination is by judge alone: s 44 (1). 2. The defendant is to be represented by an Australian legal practitioner unless ordered otherwise: s 44 (2). 3. The enquiry is not to be conducted in an adversarial manner: s 44 (3). 4. Onus of proof does not rest on any particular party: s 44 (4). 5. The court is to consider modification of the trial process or assistance provided to facilitate understanding and effective participation in the trial. The length and complexity of the trial and representation of the defendant: s 44 (5). 6. A determination by the judge must include the principles of law applied by the judge and the findings of fact on which the judge relied: 44 (6). 1. Mr Hume is represented by an Australian legal practitioner. 2. Section 36 now creates an explicit statutory test for fitness based on the principles set out in R v Presser [1958] VR 45, which were applied in Kesavarajah v The Queen (1994) 181 CLR 230. Section 36 (1) provides that a person will be unfit to be tried if, because they have a mental health or cognitive impairment, they cannot do one or more of the following: 1. understand the offence the subject of the proceedings, 2. plead to the charge, 3. exercise the right to challenge jurors, 4. understand generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged, 5. follow the course of the proceedings so as to understand generally what is going on, 6. understand the substantial effect of any evidence given against the person, 7. make a defence or answer to the charge, 8. instruct the person's legal representative so as to mount a defence and provide the person's version of the facts to that legal representative and to the court if necessary, 9. decide what defence that person will rely on and make that decision known to the person's legal representative and court. 1. The list is not exhaustive and does not limit the grounds on which a court may consider a person to be unfit to be tried for a defence: s36 (2). THE EXPERT EVIDENCE 1. Dr Susan Pulman a forensic psychologist and clinical neuropsychologist provided a report dated 25 August 2020. The report informs me of the following, "Mr Hume reported a history of heart disease having undergone a triple bypass operation approximately 25 years ago. Medical documentation reviewed indicates a history of hypocholesterolaemia for which he is prescribed Lipitor. A medical report prepared by Dr Peter Calaizis dated 19/7/2015 indicated that Mr Hume suffered a transient ischaemic attack in 2009 and stroke in 2014. He has presented on at least two occasions to Griffith Bases (sic) Hospital with chest pain for which he has been monitored in hospital prior to discharge. Most recent review from Dr Peter Bortz, Cardiologist dated 13/3/2019 indicated there has been no change in his cardiovascular status. He is prescribed Clopidogrel 75 mg (blood thinner), Metoprolol 50 mg (for heart rate) and is registered with the hospital as a Chronic Care Patient. Given reported episodes of dizziness Mr Hume underwent a CT brain scan (dated 9/7/2018) which revealed diffuse periventricular low attenuation changes in the deep white matter consistent with chronic small vessel ischaemic disease." 1. A number of tests administered by Dr Pulman are summarised as follows; 1. Cognitive Screen- the Addenbrooke Cognitive Examination-ACE-III "Mr Hume was administered the Addenbrooke Cognitive Examination (ACE-III) which is a cognitive screening tool recommended for use by health practitioners and researchers in patients over 50 years with dementia. Mr Hume scored 70 out of a possible 100 which is below the cut off score of 88. This suggests Mr Hume may be in the early stages of dementia and further assessment by a team of medical specialists is recommended." 2. Current Intellectual Functioning "His Working Memory index score was statistically significant different from his performance on the Verbal Comprehension and Perceptual Reasoning indices. Mr Hume's performance in the General Ability index fell within the Low Average to Average range and at the 19th percentile i.e. at or above 19 percent of the normal population." 3. Attention and Concentration, Processing Speed "Mr Hume's basic immediate attention span was poor. His overall working memory (ability to hold information in mind for further processing) fell within the Borderline range and at the 6th percentile." 4. New Learning and Memory "Assessment of Mr Hume's verbal memory revealed markedly impaired performance on both structured and unstructured measures of new learning and memory. His ability to learn a list of words after repeat presentations fell within the Extremely Low range and at the 1st percentile. He showed a flat learning curve indicated by his inability to learn from repeated presentations of the same material. His ability to recall the material after a brief delay was also impaired. Recognition memory was extremely poor. His immediate and delayed recall of two short stories was impoverished. Recognition memory was also poor." 1. It was the clinical opinion of Dr Pulman that, "The results of the current assessment indicate his Verbal Comprehension and Perceptual Reasoning skills fall within the Average to Low average range. His basic attention span is poor and his overall working memory falls within the Borderline range… Qualitative assessment of his processing speed suggested significant difficulties in this domain. Assessment of verbal memory for both structured and unstructured material was poor. He did not benefit from repeat presentations of the material nor did his recall benefit from recognition prompts or cues… Cognitive screening also suggests he may (sic) early stages of a neurodegenerative or dementing process. His history of cardiovascular disease and MRI indicate chronic small vessel disease and it is likely this has now extended to impacting his cognition… Although Mr Hume is aware of the charges he currently faces, understands the role of his solicitor and the general nature of a court being an enquiry into the facts, he is likely to have significant difficulty recalling what is said in a court room and in that respect be able to adequately follow the course of the proceedings. He may benefit from the presence of a support person, although he is likely to struggle to keep up with evidence presented and follow what is said by both his own counsel and the prosecution." 1. Jessica Pratley Clinical and Forensic Psychologist provided a report dated 25 January 2021. Mr Hume reported to her problems with his short-term memory noting, that his long-term memory is generally stable. She reviewed the neuropsychological test results and said, "In her report, Dr Pulman indicated that Mr Hume's test results raised concern that he may be in the early stages of dementia and I agree the test data suggests that this is the case." It was her view that his working memory is in the borderline range. 1. Ms Pratley reported that, "Dr Pulman administered a number of tests in order to explore Mr Hume's capacity for new learning and memory. Review of her report, in conjunction with the scores from her assessment, confirms that Mr Hume demonstrated a marked inability to learn new information, even after repeated presentations. Dr Pulman raised concern that Mr Hume may be in the early stages of dementia and suggested that he is likely to have significant difficulty following a trial. Based on my assessment with Mr Hume, review of Dr Pulman's report and the results for psychometric assessment with him, I share her opinion" 1. Ms Patley expressed the following opinion, "The question at hand is whether Mr Hume has capacity to plead and/or stand trial based on his advanced age and concerns identified in Dr Pulman's report regarding possible onset of dementia. Mr Hume demonstrated adequate insight into many of the relevant Presser criteria in the current assessment. However, this is likely due to the fact that knowledge about legal proceedings forms part of Mr Hume's general knowledge, which can be considered longer-term knowledge and less susceptible to impairment in the early stages of dementia or other cognitive degeneration. He retained some information presented to him verbally during the assessment, although not all, and claimed no memory of some of our discussions. His claim of no memory of these discussions is supported by the prior psychometric assessment of Dr Pulman which demonstrates that Mr Hume experiences significant difficulty with working memory and retention of new information. He demonstrated greater difficulty with memory as our assessment progressed and he grew tired." 1. She went on to report, "It is my opinion that Mr Hume is unfit to plead and be tried. While he is able to provide a basic account of one of the allegations, his neurocognitive functioning means that he is unable to adapt to new information that may arise in the course of legal proceedings and appropriately instruct counsel. Mr Hume's deficits in working memory and his likely early stage of cognitive degeneration will create difficulties in the face of a potential trial. If he genuinely cannot recall events surrounding the allegations, he cannot provide a defence and instruct his counsel with regard to testing the evidence presented. He will have difficulty following the course of the trial and identifying areas where the evidence does not match his own account, as he does not have capacity to integrate new information into his short- term memory and too manipulate this information such that he pieces it together with his own memory. The cognitive degeneration that has commenced will progress, not improve. I further note that the court environment is an emotionally and cognitively pressured environment, which requires additional resources for an individual to follow. Mr Hume does not have capacity to sustain his attention and focus for the duration of a trial, particularly if that trial is delayed and/or lengthy. Finally, his cognitive state means that he is likely susceptible to influence." 1. Ms Pratley in her report dated 12 April 2021 says, "While he retains memory for some events, his working memory is impaired. Mr Hume may present with improved memory on some days, however, this will likely change on a daily basis, and it is certain that he will experience a consistent deterioration as time progresses. The speed of the deterioration that he will experience cannot be predicted, however, he will not improve. As such, it is my opinion that Mr Hume will not become fit to be tried within the next 12 months, or even over a longer period." DETERMINATION 1. It is clear from the expert evidence that the accused has a cognitive impairment as defined in section 5 of the act and in particular, section 5 (2)(c) dementia. Having considered the expert evidence and the application of the statutory test for fitness as set out in section 36 I am satisfied on the balance of probabilities that Mr Hume is not fit to stand trial. I am satisfied that on balance that he will not become fit for trial within 12 months as set out in the report of Ms Pratley dated 12 April 2021. I am satisfied on balance from the report of Ms Pratley dated 12 April 2021 his cognitive degeneration will not improve but rather get worse with time. 2. Having found the accused unfit to be tried and satisfied that he will not during the next 12 months become fit to be tried for the offences he is to be dealt with under Division 3 of the act: s 48(1). 3. Division 3 of the act sets out the procedures for Special hearings. 4. Pursuant to section is 53 (2) the court must obtain advice from the Director of Public Prosecutions as to whether or not further proceedings will be taken by the Director in respect of the offences. A special hearing pursuant to Division 3 cannot be conducted until the Director's advice is received. Accordingly the proceedings will be adjourned until that advice is received. ********** 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: 15 April 2021