New South Wales Supreme Court CITATION : R v DMA [2000] NSWSC 1051 revised - 21/11/2000 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 70061/99 HEARING DATE(S) : 13 November 2000 JUDGMENT DATE : 14 November 2000 PARTIES : Regina DMA (Accused) JUDGMENT OF : Dunford J COUNSEL : Mr P Dare (Crown) Mr G Turnbull (Accused) SOLICITORS : Director of Public Prosecutions (Crown) John A O'Donnell & Associates (Accused) CATCHWORDS : CRIMINAL LAW - whether accused fit to be tried Children (Criminal Proceedings) Act 1987, ss 10 & 11 LEGISLATION CITED : Mental Health (Criminal Procedure) Act 1990, s 12 Children (Detention Centres) Act 1987 Mental Health Act 1990 R v Mifsud (CCA - 8 November 1995) R v Presser [1958] VR 45 CASES CITED : Kesavarajah v The Queen (1994) 181 CLR 230 R v Cornwell [1972] 2 NSWLR 1 R v Hallacoglu (1992) 29 NSWLR 67 DECISION : Accused unfit to be tried. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION BAILS / CRIMINAL DUNFORD J Tuesday, 14 NOVEMBER 2000 70061/99 R v D.M.A. JUDGMENT (On fitness to plead) 1 HIS HONOUR: Having regard to the provisions of ss 10 and 11 of the Children (Criminal Proceedings) Act 1987, no persons other than members of the accused's family, members of the victim's family, members of the press or persons involved in the case may remain in Court. Any other persons are required to leave the Court and the name of the accused is not to be published without the consent of the Court. 2 Yesterday an inquiry was held pursuant to s 12 of the Mental Health (Criminal Procedure) Act 1990 ("the Act") as to whether the accused is fit to be tried in respect of two charges pending against her, namely, (1) that on 25 January 1999 at Warilla, she did wound her mother with intent to murder, and (2) that on 23 July 1999 at Haberfield she did murder Scott Bremner. The hearing was short and at its conclusion I found that the accused was unfit to be tried and made consequential orders. I now give my reasons for those orders. 3 Subject to an incident towards the end of the hearing to which I shall refer, the inquiry took the form of the tender of a number of documents which became exhibits. These were tendered by consent and it was agreed by both counsel, Mr Dare, who appeared as Crown Prosecutor, and Mr Turnbull, who appeared for the accused, that subject to my being satisfied, the accused is unfit to be tried. In accordance with the requirements of s 12(2)(3) of the Act the proceedings were not conducted in an adversary manner and I do not regard the onus of proof as resting on either party, but I determined the issue on the balance of probabilities. 4 The issue has been determined by me, sitting without a jury, because of an Election by the accused pursuant to s 11A of the Act (exhibit C). Having regard to the material contained in paragraphs 38 to 44 of the affidavit of the accused's solicitor, John O'Donnell, sworn 9 November 2000, I am satisfied that before making the Election the accused sought and received advice in relation to such election from a barrister or solicitor, and that she was capable of receiving such advice and fit to make such election, see R v Mifsud (CCA - 8 November 1995). 5 The accused was born on 11 August 1982 and never knew her father. She was raised in a less than satisfactory home environment and was taken into care at 2 years of age. There followed a series of foster placements and periodically living back with her mother. She was apparently sexually abused by one of her mother's partners and was made a State Ward at the age of 4 years. She thereafter spent several years at Renwick, Mittagong, before at the age of 12 years being placed with foster parents under the auspices of Dr Barnardos, Wollongong. She has two half sisters, each by different fathers. 6 Over a number of years several psychotherapists who have seen her have expressed opinions as to her intellectual disabilities and social and intellectual immaturity, and she has been assessed as being within the mildly intellectually handicapped range. She also has episodes of rages and self harm. She developed and maintains a deep dislike of her mother. 7 The facts alleged by the Crown are that on the evening of 25 January 1999 she left her foster parents' residence and made her way to Warilla where she forced her way into the house occupied by her mother, menaced her mother's current de facto with a knife, as a result of which he fled the house and was chased by the accused. She later returned to the house and threatened her mother with the knife. Her mother ran from the house with another daughter and was chased by the accused. As the mother got into her car she felt a pain in her shoulder and heard the accused say, "I'm gonna kill ya. I'm gonna kill ya". The mother felt a sharp pain in her neck and had been stabbed, apparently by the accused. 8 After being charged with the offence in relation to her mother the accused was taken into custody and kept at Yasmar Detention Centre, but on 23 July 1999, while attending a TAFE cooking class held at that institution, she took a large kitchen knife and stabbed the course teacher, Scott Bremner, in the back. Mr Bremner died shortly afterwards during surgery at Royal Prince Alfred Hospital as a result of the stab wound. 9 The accused was seen by Dr Muul on 19 January 1999, that is before the attack on the accused's mother. His report sets out something of her background, and he noted a number of violent attacks over the years, as well as episodes of rage and deliberate self harm. He also noted that she had previously been diagnosed as suffering a Disruptive Behaviour Disorder not otherwise specified, Dissociative Disorder not otherwise specified, and Moderate Mental Retardation. 10 Another psychiatrist who had previously seen the accused, Dr Sarah Williams, had reported that the accused was the hardest case she had ever had to deal with in her 40 years of psychiatric practice. A psychological assessment done in January of 1995 had measured her verbal IQ at 46; her performance IQ at 46; and her full scale IQ at 40, although the psychologist felt that the IQ scale of 40 was probably an under-estimation of her abilities and reflected her degree of emotional disturbance and lack of educational opportunities. 11 Dr Muul considered that her Disruptive Behaviour Disorder had developed into a Conduct Disorder and that there was also present an Intermittent Explosive Disorder as well as a Dissociative Disorder. He considered that she was at that time functioning in the range of mild mental retardation. 12 After the attack on her mother she was seen by Associate Professor Einfeld, subsequently described by Dr Brent Waters as "a recognised expert in the area of mental illness and development disability". Professor Einfeld expressed the view that she did not meet the criteria for fitness to be tried because she would not understand the substantial effect of any evidence that may be given against her or be able to make a defence, except in response to simple or literal questions, and would not be able to give counsel any necessary instructions, apart from the most superficial and concrete ones. He felt her fitness to be tried was significantly limited by her intellectual ability. 13 She was also seen by Dr Westmore, a Forensic Psychiatrist, on three occasions: 11 August 1999, 12 November 1999 and 6 October 2000. The first interview was terminated when she assaulted Dr Westmore after about 45 minutes. In each of his reports Dr Westmore sets out a number of the questions he asked her and her responses to such questions. She showed a general lack of familiarity with, and lack of appreciation of, the Court processes. She would not talk about the incidents giving rise to the charges or about the alleged sexual abuse suffered by her. She was very vague about what subjects she was studying at school and claimed she had a best friend whose name she did not remember. She was also easily distracted by movements around her and Dr Westmore found it very difficult to get her to focus on relatively simple, straightforward questions or give any type of verbal response to a question. 14 In his report of 16 November he expressed the following opinion: " ... this young person is unfit to be tried, not because of her intellectual disability primarily, but because of her lack of social and intellectual (sic) maturity. She is also highly distractible and she would not I think be able to follow the proceedings of a lengthy trial. She appears to have some difficulty understanding the Presser issues, although I am not sure what level of explanation has been provided to her about these to date. It is possible that with advancing age and maturity she might be able to focus more appropriately on the very serious matters now before the court. Her unfitness is not in my view related in any principal way to her intellectual disadvantage, but principally to a matter of maturity. She also is highly distractible ..." 15 At her third interview with Dr Westmore on 16 October 2000, although conducted in an area where there were reduced levels of distraction from the environment, she continued to display high levels of distractibility and inattention. Again, questions and answers about the Court processes were recorded and she also admitted hearing voices and seeing faces. Dr Westmore confirmed his earlier opinion that she was not fit to be tried. 16 A further psychiatric examination, arranged by her own solicitor, was conducted by Dr Brent Waters on 30 October 2000. Dr Waters also had the opportunity to review the earlier reports. He concluded that she could not describe the role of the Judge, did not know the role of the jury and was unable to provide any understanding of the notion of instructing her solicitor. She was extremely distractible and at times she started mumbling inaudibly and said that she could hear voices. She expressed the view that she had the ability to predict events and told him that she knows two people who have somebody else's spirit in their bodies, and that one of the male prison officers in the Induction Unit had inside of him the spirit of the deceased, Scott Bremner. Dr Waters also formed the view that she was not fit to be tried for the same reasons as expressed by Professor Einfeld and Dr Westmore. He was of the opinion that at the time she was psychotic and showed abnormality of thinking in terms of delusions and auditory and visual hallucinations and her state was consistent with schizophrenia. 17 Finally, there was an affidavit by her solicitor who said that over the period of two years during which he had appeared for and represented her, she had exhibited little, if any, understanding of the legal process or procedures, and apart from the most mundane of questions, he found it impossible to get responsive replies to questions associated with the criminal charges and processes. He felt that her most recent presentation was significantly worse than on previous occasions. He also found her distractible and apparently hearing voices. He said that she cannot plead or instruct in a meaningful way, is delusional, and cannot accept the basic facts of the case. He expressed the opinion she would not understand what was going on in Court, even in a general sense, and could not give the Court or her counsel her version of the facts as can properly be established. 18 This perspective from her solicitor's point of view, together with the evidence of the psychiatrists, satisfies me that she is incapable of giving meaningful instructions for the conduct of her defence, and in the absence of such instructions she cannot be tried without unfairness or injustice. I do not believe she would be able to intelligently plead to the charges or give instructions for such pleas. Although she may understand, generally, the nature of the proceedings, I am not satisfied she would be able to follow the course thereof or the substantial effect of the evidence against her, in particular because of her easy and frequent distractibility. Moreover, she would not be capable of making any defence to the charges or giving evidence in support of such defences. These problems will all be accentuated the longer the trial lasts. See R v Presser [1958] VR 45 at 48, Kesavarajah v The Queen (1994) 181 CLR 230 at 245, 246. 19 When the proceedings commenced yesterday the accused was present in Court, she appeared reasonably relaxed and confirmed her name when I asked her. The tender of the relevant exhibits would have taken no more than 10 minutes and by the end of that time the accused was leaning to one side as though listening to something and repeating the words, "Sorry, sorry". She gradually became more and more agitated until she slumped further forward and to her side and appeared to be almost in a state of collapse. I waited a few minutes, and with assistance she returned to an upright position. I then asked her a few simple questions about whether she knew why she was here, where she was and who I was, but I received no response. I waited a short further time, but then, to avoid further distress to the accused or her family, I ordered that she be taken out of Court, intending to have her brought back for the making of the formal orders, and she was assisted out. 20 However, she could then clearly be heard making a great noise in the cells and with the express consent of her counsel I made the orders in her absence, regarding the circumstances which had arisen as constituting an exception to the general rule described in R v Cornwell [1972] 2 NSWLR 1 at 3, that the whole of the proceedings in respect of an indictable offence must be conducted in the presence of the accused, see also R v Hallacoglu (1992) 29 NSWLR 67. In reference to the concern expressed by Hunt CJ at CL in that case concerning cases of felony as opposed to misdemeanour, I note that the distinction has now been abolished in this State by s 580E of the Crimes Act 1900, inserted by the Crimes Legislation Amendment (Sentencing) Act 1999, No. 94. 21 It was for these reasons that yesterday I found that the accused is unfit to be tried, in accordance with s 14 of the Act referred her to the Medical Health Review Tribunal, and remanded her to her former custody until further order. 22 One further matter concerns me. Following her being charged with the attempt to murder her mother, she then being aged 17 years and 6 months, the accused was remanded in custody and apparently kept at the Yasmar Juvenile Justice Centre, a Detention Centre maintained by the Department of Juvenile Justice under the Children (Detention Centres) Act 1987. But whilst there during a cooking class she allegedly stabbed a teacher involved in the class with a kitchen knife, resulting in his death and her being charged with his murder. She was accordingly transferred to Mulawa Correctional Centre, an adult gaol, pursuant to s 28A of the Children (Detention Centres) Act 1987 and has remained there since that time. 23 I understand she is kept in the "Mum Shirl Unit" which has been specially built for detainees with behavioural problems and is staffed by clinical psychologists and specially trained correctional staff, but clearly this young lady should not be in an adult gaol, whatever special provision is made by a special unit, but in a secure ward of a hospital maintained under the Mental Health Act 1990. She is clearly a danger to others and there have been a number of attempts at self harm. She is, on the evidence, intellectually disabled and lacks social and emotional maturity. She is highly unstable, violent and impulsive and apparently also suffering hallucinatory voices and visions. 24 Dr Waters also considers her psychotic and her condition consistent with schizophrenia. He concluded his report as follows: "She is also mentally ill at the moment and, in my view, she would benefit from appropriate psychiatric treatment. I would recommend that for her own safety, and the safety of others, she be placed in a secure psychiatric treatment unit where she can receive appropriate treatment." 25 I endorse the doctor's opinion. As I say, it is not appropriate that she be kept in an adult gaol and she clearly needs appropriate psychiatric treatment. It is for this reason that I yesterday made a strong recommendation that she be transferred to a hospital within the meaning of the Mental Health Act, and detained there, rather than at a Corrective Services Institution. 0o0 Last Modified: 11/21/2000 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.