New South Wales Court of Criminal Appeal CITATION: Regina v Bridge [2005] NSWCCA 122 HEARING DATE(S): 06/04/2005 JUDGMENT DATE: 6 April 2005 JUDGMENT OF: Hunt AJA at 1-26; Grove J at 27; Hall J at 28 DECISION: Appeal against the jury's finding dismissed. CATCHWORDS: Fitness to be tried hearing - minimum standards with which an accused must comply before he or she can be tried without unfairness or injustice - whether open to the jury on the evidence before it to be satisfied on the required balance of probabilities that the appellant was unfit to be tried. Criminal Appeal Act 1912 LEGISLATION CITED: Mental Health (Criminal Procedure) Act 1990 Kesavarajah v The Queen (1994) 181 CLR 230 CASES CITED: Regina v Prosser [1958] VR 45 Regina Crown PARTIES: Peter James Bridge Appellant FILE NUMBER(S): CCA 2004/2866 V Lydiard Crown COUNSEL: Unrepresented Appellant S Kavanagh Crown SOLICITORS: Unrepresented Appellant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/41/0073 LOWER COURT JUDICIAL OFFICER: Goldring DCJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL CCA 2004/2866 HUNT AJA GROVE J HALL J Wednesday 6 April 2005 REGINA v Peter James BRIDGE Judgment 1 HUNT AJA: Peter James Bridge was found by a jury in the Wollongong District Court to be unfit to be tried on a charge of maliciously wounding one Stephen Clare with intent to do grievous bodily harm to him. The charge arises out of an altercation between the two men in which, it is alleged, the appellant, after saying that he was going to kill Mr Clare, threw Mr Clare to the floor head first, splitting the skin on his forehead to the degree that several stitches were required, and he attempted to choke him. The appellant was represented by counsel at the hearing before Judge Goldring, as required by s 12 of the Mental Health (Criminal Procedure) Act 1990. The relevant evidence consisted solely of a psychiatrist called by each party. 2 The appellant was initially refused legal aid for this appeal on the basis, according to a letter of 8 September 2004 from the Legal Aid Commission, that there is no appeal from a finding of unfitness to be tried, as s 5 of the Criminal Appeal Act 1912 refers only to a person convicted on indictment. The Legal Aid Commission's initial view was not correct. Section 2 of that Act defines "conviction" as including a person found unfit to be tried in accordance with s 14 of the Mental Health (Criminal Procedure) Act. That is the section under which the appellant was found unfit to be tried in the District Court. The application for legal aid was subsequently reviewed by the Legal Aid Commission, and the Court has been informed this morning that the application for legal aid has now been refused on its merits. 3 The submissions filed by the appellant are mainly concerned with the facts to be investigated in the criminal trial of the charges against him, and they discuss the issues in that case by reference to such terms as res ipsa loquitur, double jeopardy, false pretence [sic], habeas corpus, audi alteram partem, certiorari, malicious prosecution, discrimination, victimisation, mandatory prohibitory injunction [sic] and res gestae. None of that is relevant in this appeal. 4 The appellant maintains that the charges against him have now been withdrawn. The original charge of inflicting grievous bodily harm with intent to do so was replaced by the charge of wounding with intent to inflict grievous bodily harm (a less serious offence), but it is wrong to suggest that the charges against him have been withdrawn. In fact, the Mental Health Review Tribunal has made a determination under s 16 of the Mental Health (Criminal Procedure) Act that the appellant will not become fit to be tried for a period of twelve months after the jury's finding. The Attorney General has accordingly directed a special hearing pursuant to s 19 of that Act and a date for that hearing is apparently to be fixed shortly. 5 The appellant does complain that counsel representing him at the fitness to be tried proceedings disobeyed his instructions in a number of respects, but most of these complaints confuse the issues to be investigated in the fitness to be tried proceedings with those to be investigated in the criminal trial of the charges against him. He says that he was not permitted to address the jury at the hearing or to put forward evidence. The statute does not permit him to appear in person unless specifically allowed in the particular case (s 12), so he could not have addressed the jury. Most of the evidence which he suggests he would have put forward was irrelevant to the issues before the jury. 6 The appellant has, however, drawn our attention to one particular matter which, he says, counsel appearing for him in the hearing failed to investigate before the hearing. In his report, Dr Allnutt (one of the psychiatrists called) said: In my opinion [the appellant] presents with symptoms consistent with psychotic disorder. He manifests, in my view, ideas of grandiosity and persecution. The appellant then drew our attention to documents which, he says, would have demonstrated to Dr Allnutt that what he described as complaints of persecution were in fact true. 7 There are two answers to this present complaint by the appellant. First, Dr Allnutt must be understood to have limited the effect of that statement to the matters which he referred to in his report. The documents to which the appellant has drawn our attention do not relate to any of the matters to which Dr Allnutt has referred. Secondly, the effect of the documents to which our attention has been drawn appears to have been misinterpreted by the appellant, as they do not prove the truth of what the appellant says were his complaints and which the doctor called complaints of persecution. 8 Dr Allnutt did go on to qualify his opinion in one respect: I have to qualify this opinion in that I have not had the opportunity to examine collateral information in relation to your client's financial and academic achievements. If information is available to support your client's achievements then his beliefs may not be delusional. If however there is no evidence to the contrary then my view is that your client suffers from grandiose delusions and persecutory delusions. This qualification is, on its face, restricted to the appellant's delusions concerning his financial and academic achievements, and does not apply to the many other assertions made by the appellant which the doctor had recorded. The reference is to the following history recorded by Dr Allnutt: He [that is, the appellant] has studied in a number of areas including program logic, control, management, accounting, market research and engineering. He had attended the University of South Australia through correspondence. He has lectured to all sorts of people in all sorts of areas, mainly in the area of engineering and physics. He has through the years taught himself physics and nuclear physics. The appellant complains that his counsel should have contacted the authorities in South Australia to demonstrate that these matters were true. 9 However, in order to make good in this Court what is in essence a claim that the additional material which Counsel would have obtained through contacting those authorities would be likely to alter Dr Allnutt's opinion, it would be necessary to demonstrate that there is at least some prospect that the additional material would indeed have shown that the appellant's claims to such achievements were true and therefore not delusional. That has not been done. The existence of such additional material is still unknown. 10 The appellant disputed the views expressed by both the psychiatrists, but the appeal to this court is not a rehearing. What must be demonstrated in this Court is either an error of law made by the judge in the proceedings or that the jury's finding was unreasonable or cannot be supported having regard to the evidence or that there has been some other matter which has led to a miscarriage of justice. That second alternative is made out if, notwithstanding that as a matter of law there was evidence to sustain that finding, this Court is satisfied that it was not open to the jury to conclude on that evidence, on the balance of probabilities, that he was unfit to be tried. 11 The appellant claims that, since being in custody, he has acted in a rational, responsible manner, but that does not establish error in the jury's finding on the evidence before it that he was unfit. He says that he has also achieved many important things in his life by acting rationally, not irrationally. As I have already said, this is not a rehearing of the issues determined in the District Court. Nor, in the light of the subsequent finding by the Mental Health Review Tribunal, would it be appropriate in any event for this Court to revisit that issue for itself. Section 15 of the Mental Health (Criminal Procedure) Act provides that a person found to be unfit to be tried continues to be unfit until the contrary is, on the balance of probabilities, determined to be the case in accordance with that Act. 12 The appellant has also challenged his guilt in relation to a number of convictions recorded against him, but these challenges are irrelevant, as are the convictions themselves, to this present appeal. Various issues relating to family matters are made, and correspondence with the NSW Ombudsman is provided, but all these matters, too, are irrelevant to this appeal. 13 In Kesavarajah v The Queen (1994) 1 81 CLR 230 at 245, the High Court adopted the elaboration by Smith J in Regina v Prosser [1958] VR 45 at 48, to identify the minimum standards with which an accused must comply before he or she can be tried without unfairness or injustice as requiring the ability: (1) to understand the nature of the charge; (2) to plead to the charge and to exercise the right of challenge; (3) to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged; (4) to follow the course of the proceedings; (5) to understand the substantial effect of any evidence that may be given in support of the prosecution; and (6) to make a defence or answer the charge. 14 The judge correctly identified for the jury the issues which they had to consider, and encapsulated the evidence relating to all but the last of those issues in these terms: The question is whether Mr Bridge, because of a mental illness, fails to come up to certain mental standards below which the trial cannot be conducted and still be fair. That is, it cannot be conducted without injustice to Mr Bridge. Those things are, firstly, that he has to understand what he is charged with. Now, you have heard both Dr Allnutt and Dr Nielssen tell you about their assessment of that and they both think, yes, he understands what he is charged with. The next thing he has to understand or has to be able to do is to plead to the charge and to exercise his right of challenge. Now, you have heard both the doctors say, yes, he wants to plead not guilty and he wants to plead not guilty on the grounds of self-defence. 15 The judge then referred to the evidence of both psychiatrists, that the appellant "flatly rejected" any defence of mental illness being raised, even though both of them thought that such a defence was open to him. For myself, I do not think that this particular consideration carried much weight, in that, although it may itself be evidence of mental illness, it may also be that, because of the legal consequences to him of such a defence succeeding, the appellant very rationally declined to accept such advice. It was, however, at least a relevant consideration. 16 The judge went on to say: The other thing that he [that is, the appellant] has to understand is his right of challenge. Reference was made to the procedure adopted in the hearing itself when the appellant exercised his right of challenge assisted by counsel then appearing for him. 17 The directions continued: The third thing that a person must understand if they are fit to be tried is the nature of the proceedings, namely that [it] is an enquiry as to whether Mr Bridge did what he was charged with, namely commit this serious assault. Now, he understands that, and both doctors agree that that is so, and indeed he prides himself on understanding the legal system, and he also understands the next thing that he must understand in order to have a fair trial, and that is to understand what is going on in court. Now, you might say, having been here for two days, that you probably do not understand everything that goes on in court, that is not what is required. What a person needs to be fit for trial is to understand in general terms what is going on in court and what the court proceedings are aimed to do. The final thing they have to understand in order to be fit is complex, and that can be broken up perhaps. First of all, they have to understand the effect of any evidence that is given. So they listen to a witness give evidence and they have to understand not only what the witness says, but the effect of what that witness says on the outcome of the trial. So you have heard both doctors say that Mr Bridge has read the witness statements that have been provided to him by the prosecution. What they both have some doubt about is whether he has the capacity to understand what the effect of any evidence given on the basis of those statements might have on him, and they both refer to his belief, which they described as delusional, that there is a conspiracy against him and [that] the alleged victim of the assault is part of that conspiracy. So they say that Mr Bridge might see any evidence against the background of his delusional beliefs. You remember that both doctors have explained what a delusional belief is. It is something which the person holding the belief believes absolutely honestly to be true, but for which there is no objective basis. Another thing that a person must be fit to do in order to have a fair trial is to give instructions to their lawyers about what is going on, to be able to communicate with the lawyers. Now, you have to assess whether, in light of the expert evidence, you consider that Mr Bridge will be able to communicate with his lawyers so that the lawyers can ask the questions of witnesses that need to be asked and address arguments to the Court that needs to be put to the Court and so on. Now, it does not mean that Mr Bridge needs to know all the ins and outs of court procedure, but he must have sufficient capacity to decide what his defence will be, to make his defence and to make sure that the Court and his lawyers know what that defence is and that it is put effectively. 18 The judge did not repeat the evidence which the doctors gave in relation to his last point because it had been given only that very morning. It is, however, appropriate that this evidence be referred to in this judgment. 19 Dr Allnutt was called by counsel appearing for the appellant. On this particular issue, he said: I formed the impression during my interview with the applicant that he was so preoccupied by all these other conspiracies that were going on around him that he would have a lot of difficulty focusing on the issue at hand in the courtroom, and that is whether he was guilty or not of those particular charges of assaulting this particular individual — that he would be so preoccupied with everything that he wouldn't be able to focus on it. And his preoccupation with everything derived from a mental illness which was causing him to have delusional beliefs, and that's quite common with people with a mental illness and with delusional beliefs [that] there's a big conspiracy. They became so fixated with those ideas and everything that they do, and everything that they engage in, becomes influenced by those beliefs. 20 The doctor was asked whether the appellant had the capacity to follow the proceedings as they unfolded before him and to understand what was going on in a general way. He replied: In a general way, but I have to say … there is in my view a substantial risk that, when in the process of the trial and when the whole issue around his relationship between himself and the victim starts emerging, … he is going to be distracted by their history together and his beliefs about them…his delusional beliefs about this person, and that may distract him from what the trial is actually about, which is did you or didn't you do this crime. 21 As to the distractions, Dr Allnutt said: [T]he significant risk that the decisions that he may make about his trial during the trial may be influenced by his delusional beliefs. And, in that way, … if decisions are influenced by what is already irrational, then the decisions are at risk of being irrational themselves. So he may make bad decisions during his trial which may be detrimental to him, not because he's decided to do it out of a rational mind, but because he's decided to do it out of an irrational mind and mentally ill mind. 22 In cross-examination, the doctor said that the appellant would have difficulty understanding the substantial effect of the evidence given during the trial because, when the events between him and the victim come up — … he may become involved in his delusional beliefs again, and that may then cause him to misinterpret or misunderstand what is being said. Dr Allnutt was also of the view that the appellant would not have the capacity rationally to determine the defence on which he should rely. That view was no doubt based on the appellant's refusal to accept his advice to raise a defence of mental illness. 23 Dr Nielssen was the psychiatrist called by the Crown. He identified the appellant as suffering from an acute psychotic illness which was either a chronic schizophrenia or schizo-affected disorder, which is an illness with features of both schizophrenia and manic-depressive illness. In relation to the appellant's ability to communicate instructions to his lawyers and thereby to the Court, he said: [A]s part of his mental illness, he's got a communication disorder that affects his capacity to keep to the point and to make relevant and rational remarks. Also, his communications are affected by his underlying delusional beliefs and that any opinion he expressed would be influenced by his delusional beliefs. 24 Dr Nielssen said that the appellant's ability to understand the substantial effect of the evidence given in the case was affected by his delusionary beliefs — …in the sense that he has a widespread delusion of a conspiracy against him which, it emerged in the interview, … included the legal system. 25 After anxious consideration of the whole record of the fitness to be tried hearing, I am satisfied that there was no error of law made by the judge in the directions he gave, and that it was well open to the jury on the evidence before it to be satisfied on the required balance of probabilities that the appellant was unfit to be tried. Accordingly, there is no basis demonstrated for saying in accordance with s 5 of the Criminal Appeal Act that the jury's finding was unreasonable or cannot be supported having regard to the evidence. There was no failure by the appellant's legal representatives to ensure that the hearing was a fair one. There has been no miscarriage of justice. 26 I propose that the appeal against the jury's finding be dismissed. 27 GROVE J: I agree. 28 HALL J: I also agree. 29 HUNT AJA: The order of the Court is that the appeal against the jury's finding is dismissed. ********************* 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.