Land and Environment Court New South Wales Medium Neutral Citation: Environment Protection Authority v Mouawad (No 3) [2023] NSWLEC 44 Hearing dates: 21 April 2023 Date of orders: 24 April 2023 Decision date: 24 April 2023 Jurisdiction: Class 5 Before: Duggan J Decision: See paragraph 43 Catchwords: CRIMINAL PROCEDURE – inquiry into fitness to stand trial – application of common law Presser Test – whether Defendant's mental illness results in him being unable to participate in fair trial – expert evidence – assessment of Defendant's cognitive capabilities – Defendant fit to stand trial Legislation Cited: Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Protection of the Environment Operations Act 1997 (NSW) Cases Cited: Director-General, Department of Environment, Climate Change and Water v Source & Resources Pty Limited; Alexander; Gordon Plath of the Department of Environment, Climate Change and Water v Source & Resources Pty Limited; Alexander [2010] NSWLEC 235 Director-General, Department of Environment, Climate Change and Water v Source & Resources Pty Limited; Alexander (No 2); Gordon Plath of the Department of Environment, Climate Change and Water v Source & Resources Pty Limited; Alexander (No 2) [2011] NSWLEC 87 Environmental Protection Authority v Mouawad (No 2) [2023] NSWLEC 38 in R v Rivkin (2004) 59 NSWLR 284 R v Presser [1958] VR 45 Sydney City Council v Sydney Tool Supplies Pty Ltd & Daniel Bek (No. 2) [2011] NSWLEC 196 Category: Procedural rulings Parties: Environment Protection Authority (Prosecutor, Respondent on the Notice of Motion) Paul Mouawad (Defendant, Applicant on the Notice of Motion) Representation: Counsel: N Sharp SC and T Phillips (Prosecutor, Respondent on the Notice of Motion) P Mouawad, in person (Defendant, Applicant on the Notice of Motion) Solicitors: Environment Protection Authority (Prosecutor, Respondent on the Notice of Motion) File Number(s): 2018/260536, 2018/260542 and 2018/260553 Publication restriction: No Judgment Nature of proceedings 1. This matter comes before me to inquire into the Defendant's (Mr Mouawad) fitness to stand trial. 2. The substantive proceedings relate to three charges brought by the Prosecutor alleging breaches by Mr Mouawad of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) (collectively referred to as the Substantive Proceedings). The Substantive Proceedings have been fixed for a 4-week hearing to commence on 26 April 2023. 3. By Notice of Motion returnable before her Honour Justice Pritchard on 5 April 2023, the Defendant had raised his fitness to be tried. In light of the Notice of Motion and for the reasons set out in her judgment, Environmental Protection Authority v Mouawad (No 2) [2023] NSWLEC 38 (Mouawad No 2), Pritchard J fixed the matter for an inquiry into the Defendant's fitness to stand trial and made directions to facilitate such inquiry. 4. This inquiry took place on 21 April 2023 which was one business day prior to the date on which the Substantive Hearing was due to commence. Facts 1. The relevant procedural history relating to this Substantive Proceedings is set out at [9]-[34] of Mouawad No 2, and I adopt the same without repetition here. Representation 1. Mr Mouawad is not legally represented. As indicated above he has, at certain stages of the proceedings had legal representation. However, I determine this matter on the basis that Mr Mouawad will be self-represented at the Substantive Proceedings. 2. For the purposes of the inquiry into his fitness, Mr Mouawad's wife sought leave to appear as his agent. I declined that application on the basis that Mrs Mouawad was intending to be a witness in the inquiry. Further, I considered it desirable to have Mr Mouawad present his case to me so that I could obtain some impression of his capacity. However, I permitted Mrs Mouawad to sit with Mr Mouawad at the bar table and provide support and assistance. Relevant legal principles to be considered 1. Whilst the Notice of Motion sought to rely upon the provisions of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Pritchard J held at [38], for reasons with which I agree, that such provisions do not apply to a criminal prosecution in class 5 of the Land and Environment Court's jurisdiction, rather, the question is to be resolved by reference to the common law rather than statute. 2. The question of whether a person is fit to stand trial is intricately linked with the common law requirement that a defendant is entitled to a fair trial. The question of the test of fitness, at common law, was considered in R v Presser [1958] VR 45 (Presser), wherein Smith J considered the relevant circumstances in which a defendant would be unfit to be tried (at 48) as follows: 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 inquiry 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 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 to his counsel, if any. 1. This consideration has been subsequently referred to as the Presser Test and has been consistently endorsed and applied in New South Wales. For example, in R v Rivkin (2004) 59 NSWLR 284 the Court (Mason P, Wood CJ at CL and Sully J) held at [279]: The test for determining fitness to stand trial is whether the accused has a sufficient mental state, and intellect, to comprehend the course of the proceedings involved in the trial, so as to follow those proceedings, and so as to make a proper defence. The factors to be taken account have been accepted as being those developed in R v Presser (supra), an authority which has been consistently followed in this State and elsewhere: see for example R v Mailes, R v Zhang [2000] NSWCCA 344, R v Tier (2001) 121 A Crim R 509, and Kesavarajah v The Queen (1994) 181 CLR 230. 1. The Presser Test has also been applied in the consideration of such questions in the Land and Environment Court – see by way of example: Director-General, Department of Environment, Climate Change and Water v Source & Resources Pty Limited; Alexander; Gordon Plath of the Department of Environment, Climate Change and Water v Source & Resources Pty Limited; Alexander [2010] NSWLEC 235 (Alexander No 1) at [75]-[77]; Director-General, Department of Environment, Climate Change and Water v Source & Resources Pty Limited; Alexander (No 2); Gordon Plath of the Department of Environment, Climate Change and Water v Source & Resources Pty Limited; Alexander (No 2) [2011] NSWLEC 87 (Alexander No 2) at [6]; and Sydney City Council v Sydney Tool Supplies Pty Ltd & Daniel Bek (No. 2) [2011] NSWLEC 196 (Bek) at [28]-[38]. 2. It is therefore necessary for me to consider whether the Defendant is fit to stand trial having regard to the Presser Test which test requires a consideration, to adopt the summary of Pepper J at [75] of Alexander No 1, of whether the Defendant is or will: 1. be able to understand the nature of the charge; 2. be able to plead to the charge; 3. be able to understand generally the nature of the proceedings, albeit not all the court processes, namely, that it is an inquiry into whether the defendant committed the offence charged; 4. be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, although an understanding of the purpose of court formalities is not necessary; 5. understand the substantial effect of any evidence given in support of the prosecution; and 6. be capable of making a defence or answer to the charge. 1. A determination of whether or not a defendant is fit for trial is not the culmination of a balancing process. The determination is by way of inquiry, and as was observed by Sheahan J in Bek at [34]: Once the issue of "fitness" is raised, or the court itself becomes concerned about it, the trial must be suspended and an "inquiry" conducted, on an inquisitorial rather than an adversarial basis, into the question. As the inquiry process is inquisitorial, rather than adversarial, the responsibility lies on the court to make the assessment after a properly constituted and conducted hearing, observing the usual formalities of the court process, and seeking the assistance of suitably qualified expert witnesses. 1. As the process is one of inquiry, I do not consider that the concepts of burden and onus as apply in adversarial proceedings apply. Rather, it is necessary for me to consider the whole of the material placed before me and determine whether the Defendant has sufficient capacity in the context of the matters identified in the Presser Test such that if he is required to participate in the trial, such trial will be a fair trial. Evidence 1. There is no dispute between the parties that Mr Mouawad presently suffers from diagnosed severe depression. He has been under the care variously of psychiatric, psychological and general medical practitioner care for that illness since about 2013. Mr Mouawad has been variously medicated for his depression during that time and is presently taking medication as prescribed. Defendant's evidence 1. Mr Mouawad supplied a primary report from his treating psychiatrist, Dr Raymond Tint Way (Dr Way) dated 10 April 2023. In that report, Dr Way reported his observations of Mr Mouawad's mental state including noting that Mr Mouawad had been "seriously thinking of harming himself by jumping off a bridge" two weeks prior to the consultation with Dr Way. He also noted that Mr Mouawad's cognitive functions showed evidence of poor attention and concentration and short term memory difficulties. 2. In the ultimate, Dr Way expressed the opinion that: Based upon his reported clinical history and mental state examination, I have formed an opinion that he will not be able to deal with court matters at present, because of his severe depression and cognitive impairment, and that he may need to be assessed by a forensic psychiatrist regarding the issue of fitness to stand trial. 1. Dr Way was not available for cross-examination. 2. In addition, a number of earlier reports of Dr Way were also tendered by Mr Mouawad. 3. Mrs Mouawad swore an affidavit which was read. Mrs Mouawad attested to the effects of her husband's depression on his mood and capacities. She indicated that he had continued to work as a heavy machinery operator, however, his interactions with his family were reduced and that he no longer participated in activities or relationships that had in the past given him pleasure. She attested as to the event in which he intended to harm himself and she remains concerned that he will harm himself in the future. 4. Mrs Mouawad was cross-examined. From her cross-examination, she appeared as a woman who was gravely concerned about her husband's mental health. She appears supportive of his ongoing treatment. I was of the impression that her primary desire was that her husband not have to deal with the Court proceedings but focus upon improving his mental health. 5. Mrs Mouawad was also concerned that her husband, due to the lack of qualifications, would not be in a position to understand the expert evidence that was to be adduced at the hearing. Prosecutor's evidence 1. In satisfaction of the direction made by Pritchard J in Mouawad No 2, the Prosecutor required Mr Mouawad to attend an appointment with Dr Travis Wearne, he did so on 10 April 2023. During that appointment, Dr Wearne interviewed Mr Mouawad and administered psychometric and other tests. The appointment lasted approximately three hours. 2. Dr Wearne has provided a report, annexed to his affidavit sworn on 18 April 2023 which was read in this inquiry. Dr Wearne is a consultant clinical neuropsychologist. Dr Wearne has experience in the conduct of neuropsychological evaluations, in order to provide opinions to assist in the determination of a person's fitness to stand trial. He is familiar with the criteria utilised by the Court to make such determinations. 3. From his expert report, Dr Wearne outlined his process and opinions and by way of summary he was of the opinion that: 1. The Defendant understood the nature of the charges against him. He had said that he did not know the exact name of the charges but that he knew there were three and that they related to bringing waste onto land. The Defendant also knew that the charges had a relationship to others for which he had previously been tried, but that they were distinct from his prior convictions. 2. The Defendant said that he understood his right to instruct counsel. He was able to provide his own account of the events in question. He understood the role of a solicitor and he was able to verbalise the details of his legal situations and the circumstances around his self-representation at his upcoming proceedings with the Land and Environment Court. 3. The Defendant understood and appreciated the nature of a guilty/not guilty plea. He has a reasonable understanding of the consequences that attach to those pleas and has an accurate mental script of the courtroom process. 4. The findings from the psychometric and other testing show that Mr Mouawad is performing within normal limits (that is, "low average" to "average" ranges) and consistent with premorbid estimates in most areas of his intellectual and cognitive functioning assessed. He demonstrates reductions (that is, from estimated "low average" to "average" premorbid functioning) in his speed of information processing and learning, and memory for structured information. Indeed, whilst his initial intake of information can be relatively limited (likely due to being overwhelmed and limited immediate attentional difficulties), he benefits from repetition his retention. His retention of this information, if sufficiently learned, is preserved. Overall, there does not appear to be any convincing evidence of developmental disability, cognitive impairment or any organic brain impairment. 5. He has adequate expressive and receptive language skills to communicate and to follow instructions. 1. In conclusion, by way of summary, Dr Wearne considered. 1. Mr Mouawad's psychometric testing, placed him firmly within the normal range for his age. As a man of normal intellectual and cognitive functioning he is no less able to represent himself in Court proceedings than most others in the general population with his education, training, and experience. 2. There were no concerns based on his cognitive function that would affect Mr Mouawad's fitness to plead and to stand trial. 3. Mr Mouawad had indicated that he experienced a decline in his mental health and was in the throes of a psychological crisis approximately one month ago which prompted his family to raise concerns regarding his fitness to stand trial. However, he had told Dr Wearne that his distress had improved over recent weeks and he did not present as a psychologically tormented man during Dr Wearne's assessment with him. However, Dr Wearne observed that such distress may pose a barrier for his engagement with the Court process and to withstand the details and evidence provided by the prosecution. He made some recommendations as to how this barrier could be mitigated. 1. Dr Wearne was cross-examined by Mr Mouawad, and a few of the questions were posed by Mrs Mouawad. Dr Wearne did not resile from his opinion during the cross-examination. 2. In addition to the report of Dr Wearne, the Prosecutor tendered the clinical notes of Dr Way; the Defendant's current treating psychologist; and his general practitioner. 3. The clinical notes of the psychologist, Ms Helen Doutty, indicated that Mr Mouawad's recent crisis had been discussed with her and a safety plan had been developed. Such notes appear consistent with the advice given to Dr Wearne by Mr Mouawad. Defendant's submissions 1. Whilst Mr Mouawad did not give evidence, he did make submissions. During his submissions he indicated that his concentration had suffered since being diagnosed with depression. He does not consider himself a stupid person and that he described the past decisions he had made as to pleading guilty in prior proceedings and why he had decided to enter a plea of not guilty in the present proceedings. He considered that he had not done what was alleged and that he had no choice but to defend the charges. He also indicated that he had a plan as to the way in which he would defend the proceedings relating to the work he had done by way of "due diligence" with respect to the subject matter of the charges. 2. He also said that he struggled to remember what happened as he had put it from his mind. He has not recently opened a page of the Prosecutor's evidence as he "can't do it anymore" as he is "out of the fight, I just don't have it in me anymore". Findings 1. The question posed is one of fitness to stand trial. Whilst this question, in this case, necessitates a consideration of the Defendant's mental condition, it is not an inquiry as to whether he suffers a mental health condition, but rather whether that condition results in him being unable to participate in a fair trial. 2. The relevant common law test as set out in Presser Test is the standard that I must assess. 3. I consider the evidence of Dr Wearne is compelling and evidence-based. He undertook numerous recognised tests of Mr Mouawad's cognitive capabilities. Dr Way, however, took a clinical focus on the Defendant's mental health rather than a fitness consideration, such is made plain by his finding that a further assessment by another professional should be undertaken to determine fitness. It appears he declined to make such an assessment himself. I further find that Dr Way's opinion with respect to the Defendant's capacity to "deal" with the proceedings is vague and unclear as it relates to the questions I am required to consider. The failure to present Dr Way for cross-examination has made the weight to be given to such opinion of much lesser value in the context of this inquiry. To the extent that there may appear a conflict in the opinions of Dr Way and Dr Wearne, I prefer the evidence of Dr Wearne. 4. It is accepted that Mr Mouawad presently suffers severe depression and that, as such, his capacities are reduced from what they would be if he did not have his depressive illness. However, the testing of Mr Mouawad's cognitive functioning undertaken by Dr Wearne indicates that even in his depressed state and with the medication he is taking, his cognitive capacity permits him to: be able to understand the nature of the charge; and be able to plead to the charge. From my own observations of Mr Mouawad, he demonstrated that capacity in the submissions he made to me. 5. As to whether the lengthy and complex trial procedures will be within Mr Mouawad's capacity notwithstanding the symptoms of his depressive illness, Dr Wearne was of the opinion that he would: be able to understand generally the nature of the proceedings albeit not all the Court processes; namely, that it is an inquiry into whether the Defendant committed the offence charged; and he would be able to follow the course of the proceedings so as to understand what was going on in Court in a general sense, although an understanding of the purpose of Court formalities was not necessary. I accept this opinion. I, too, formed that opinion of Mr Mouawad from his interactions with the Court in this inquiry. He was able to understand the directions given to him, respond to specific questions, and respond in a focused manner to the evidence and submissions put by senior counsel for the Prosecutor. 6. The principal concern of Mr Mouawad and also expressed by his wife was Mr Mouawad's capacity to: understand the substantial effect of any evidence given in support of the prosecution; and be capable of making a defence or answer to the charge. In this capacity, the concern related primarily to the expert nature of some of the evidence and the volume of the material to be presented to the Court in the Substantive Proceedings. In this regard, Dr Wearne found that "as a man of normal intellectual and cognitive functioning, he is no less able to represent himself in court proceedings than most others in the general population with his education, training, and experience". 7. Whilst it may be that if Mr Mouawad was legally represented or had the benefit of an expert to assist him in understanding the intricacies of the expert material to be tendered it would be an easier task for him, or that his case in defence would be put in a more concise and professional manner, that is not the test with which I am considering. Having regard to the testing undertaken by Mr Mouawad by Dr Wearne, even suffering the symptoms of his depression, it is apparent he has the capacity to conduct this case, presenting his defence and understanding the evidence that is to be put by the Prosecutor. It may be a task that will take effort on his part due to the fact he is self-represented and does not hold expertise in various fields, however, I am satisfied that he has a sufficient capacity to understand the evidence in the substantial effect of that evidence and make a defence to the charges in the necessary sense. I was able to observe Mr Mouawad cross-examine Dr Wearne and considered his interactions with the witness, his capacity to ask follow-up questions responsive to evidence just given, and to remain largely on point was adequate and of a standard comparable to most litigants who are self-represented. These observations supported me in accepting the findings made by Dr Wearne. 8. To the extent that Mr Mouawad has not engaged with the evidence as "he no longer has the fight left in him" that is not, on the evidence available to me, a natural and unavoidable consequence of his depressive illness but rather the manner in which he has decided to conduct himself in connection with the imminently pending hearing. To that extent, he advised me that he had in the past read the material when he was engaging with his legal representatives, I note that at that time he was also suffering his depressive illness and was taking medication for that illness. That did not prevent him from reading and engaging with the material. His capacity to read and consider the material remains, he has chosen not to engage with it. Such a choice is not one that goes to fitness in the circumstances of this case based upon the evidence adduced at the inquiry. 9. I find that whilst Dr Wearne provided some recommendations that would support Mr Mouawad's continuing mental health during the course of the proceedings, such recommendations were not conditions upon which a finding of fitness would be based. To the extent that Mr Mouawad's ongoing mental health can be assisted by him adhering to the recommendations of his psychologist, that is a matter for Mr Mouawad. However, as he has told me that he obtained significant benefit from consultations with his psychologist, I encourage him to ensure that he continues to receive the support from this service so that he may continue to benefit from it. 10. As to the manner in which the trial is conducted – such as the provision of a support person and the timing of breaks – such are matters for the trial judge. In every case, particularly where the Defendant is self-represented, the Court will continue to ensure a fair trial making whatever directions and accommodations the trial judge considers necessary, I will, therefore, leave those matters to the trial. Conclusion and orders 1. Therefore, for the reasons I have outlined, I find that having regard to the factors to which I am directed in the Presser Test that Mr Mouawad is fit to stand trial. 2. I order that: 1. The Notice of Motion is dismissed; and 2. The exhibits are returned. ********** 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: 26 April 2023