Supreme Court New South Wales Medium Neutral Citation: R v Patricia Anne GALLAGHER [2012] NSWSC 484 Hearing dates: 10 May 2012 Decision date: 10 May 2012 Jurisdiction: Common Law - Criminal Before: Beech-Jones J Decision: (1) I find the accused Patricia Anne Gallagher is unfit to be tried. (2) In accordance with s 14 of the Mental Health (Forensics Provisions) Act 1990 I refer this matter to the Mental Health Review Tribunal. (3) In accordance with s 14(b)(iii) of the Mental Health (Forensic Provisions) Act 1990 I remand Ms Gallagher in custody until the determination of the Mental Health Review Tribunal pursuant to s 16 of that Act. (4) I direct the Registrar of the Supreme Court to provide the following documentation to the Mental Health Review Tribunal within seven days: (a) A copy of this finding and my reasons. (b) A copy of the orders which I have made. (c) A copy of the transcript of these proceedings. (d) A copy of the psychiatric and psychological reports which are exhibits in these proceedings and; (e) A copy of the Crown Case Statement. Catchwords: CRIMINAL LAW - fitness to plead to murder charge - cognitive impairment - verbal skills within extremely low range - inability to instruct counsel. Legislation Cited: Mental Health (Forensic Provisions) Act 1990, ss 8, 10, 11, 12 14, 16 Cases Cited: Eastman v R [2000] HCA 29; (2003) CLR 1 Kesavarajah v R [1994] HCA 41; (1994) 181 CLR 230 R v Presser [1958] VR 45; [1958] ALR 248 Category: Principal judgment Parties: Regina (Crown) Patricia Anne Gallagher (Accused) Representation: Counsel: Mr L Lungo (Crown) Mr M Austin (Accused) Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid Commission of New South Wales (Accused) File Number(s): 2010/00381412 ex tempore Judgment 1The Court has conducted an inquiry under s 10 of the Mental Health (Forensic Provisions) Act 1990 ("the Act") into whether Patricia Anne Gallagher is unfit to be tried for the offence of murder. This judgment records my reasons for concluding that she is unfit to be tried. Background 2On 15 November 2010 Ms Gallagher was arrested. She was later charged that between 10pm on 11 February 2009 and 12.43am on 12 February 2009 at Revesby in the State of New South Wales she did murder William Grant. 3The Crown case statement records that it is the Crown's allegation that Ms Gallagher stabbed the victim, Mr Grant, some time between 11.25pm on 11 February 2009 and 12.27am on 12 February 2009 once with a single bladed knife while he was sleeping. 4Ms Gallagher has been remanded in custody since the time of her arrest. She was committed to trial on 16 December 2011. She was due to be arraigned on 2 March 2011. Due to the unavailability of certain reports the arraignment date was adjourned to 5 April 2012. However she was not arraigned as an issue as to her fitness to be tried was raised. 5Pursuant to s 8 of the Act, Latham J directed that an inquiry should be conducted as to the question of whether she was unfit to be tried for the offence of murder. Legislative Provisions and Relevant Principles of Law 6I have already referred to ss 8 and 10 of the Act. Section 11 of the Act provides that the question of the person's unfitness to be tried for an offence is to be determined by a judge alone. Subsection 12(1) enables representation of an accused person by an Australian legal practitioner at such an inquiry. Subsection 12(2) provides that the proceedings are not to be conducted in an adversarial manner; that has been certainly complied with in this case. Subsection 12(3) provides that there is no onus of proof resting upon any party at an inquiry into whether someone is fit to be tried. 7Consistent with these provisions Ms Gallagher has been represented by Mr Austin of Senior Counsel. 8The Crown tendered by consent a number of psychiatric and psychological reports concerning Ms Gallagher, and both the Crown and Mr Austin SC provided submissions of great assistance to the Court. 9By the operation of s 14 of the Act if, following an inquiry, a person is found to be unfit to be tried then the proceedings instituted against them must not be recommenced. The Court must refer the matter to the Mental Health Review Tribunal. The Court also may make various orders as provided for in s 14(b) of the Act. 10If the matter is referred to the Tribunal then that Tribunal must determine whether the accused person will, during the period of twelve months after the finding of unfitness, become fit to be tried for the offence. Various steps in the legislative regime are engaged depending on the outcome of that inquiry. 11In Kesavarajah v R [1994] HCA 41; (1994) 181 CLR 230 at 246 Mason CJ, Toohey and Gaudron JJ confirmed that an assessment of whether a person is unfit to be tried is to be determined by reference to the factors identified by Smith J in R v Presser [1958] VR 45; [1958] ALR 248 and "by reference to the length of the trial". The criteria in Presser require that Ms Gallagher must be able to: (a)Understand with what she has been charged. (b)Enter a plea to the charge. (c)Exercise her right to challenge any juror. (d)Understand generally the nature of the proceedings so as to understand what is going on in court in a general sense, namely, that it is an inquiry as to whether she did what she is charged with. (e)Follow the course of the proceedings so as to understand what is happening without the necessity to understand all the various aspect of court formality. (f)Understand the substantial effect of any evidence which may be given against her in support of the prosecution, and; (g)Give her counsel instructions, including her version of the facts which are sufficient to make her defence and answer the charge. The Crown Case Statement 12Tendered before me by consent on this inquiry was the Crown case statement, to which I have already referred. I am treating the statement as a description of the matters the Crown anticipates it can prove at any trial if one were to occur. It follows from my description of the purpose of this inquiry that it is no part of my function at this point to evaluate the strength or weaknesses of the Crown case. It is however, necessary to refer to aspects of the Crown case in order to describe the likely length and complexity of any trial that might otherwise occur. 13The Crown case statement is 94 paragraphs in length. The first paragraph recites: "The Crown case is based on both direct and circumstantial evidence which suggests that no other person could have been responsible for the murder of William Grant other than the accused Patricia Anne Gallagher." Consistent with that description of the Crown case the bulk of the statement provides a very detailed breakdown of the events from around 11.45am on 11 February 2009 until Mr Grant was pronounced dead at Liverpool Hospital at 4.15am on 12 February 2009. 14The Crown case statement reveals that the Crown will seek to prove, by reference to telephone calls, police witnesses and a number of other witnesses who had contact with Ms Gallagher and the deceased on that day, that she was the only person who could have inflicted the fatal stab wound on Mr Grant. Presumably the Crown would also seek to exclude any reasonable possibility that the wounds were self-inflicted. 15The Crown brief consists of three volumes of statements and exhibits, transcripts of interviews, calls to the triple-0 number and transcripts of listening devices. The authors of the statement include a number of police officers, including forensic witnesses and ambulance officers, doctors and, as stated, various associates of Ms Gallagher and the deceased. 16The Crown case statement also reveals that the Crown will seek to introduce and rely upon certain statements that it is alleged Ms Gallagher made to undercover operatives, including statements made on the day of her arrest which are described as "Full Admissions/Confession". 17This brief description of the Crown case and, from what I can discern is the evidence said to support it, is sufficient for me to conclude that any trial of the charge against Ms Gallagher is likely to be lengthy and complex. Both counsel agreed that it was a matter that was likely to occupy a number of weeks, if not months of hearing time. Expert Evidence 18Ms Gallagher was examined by a psychiatrist retained by the Legal Aid Commission on her behalf, Dr Olav Nielssen, on 12 August 2011. He provided a report dated 30 September 2011. Ms Gallagher was also examined by a neuropsychologist retained by the Legal Aid Commission, Dr Susan Pullman, on 26 September 2011 and 6 October 2011. Dr Pullman prepared a report dated 11 October 2011. 19Ms Gallagher was examined by a psychiatrist retained on behalf of the Crown, Dr Stephen Allnutt, on 20 February 2011. Dr Allnutt prepared two reports; one dated March 2012 and the other dated 13 April 2012. She was also examined by a clinical psychologist retained by the Crown, Dr McMahon. On 24 and 30 March 2012. Dr John McMahon prepared a report on 30 March 2012. 20These reports were all tendered before me. Doctors Nielssen, Allnutt and McMahon were all ultimately of the view that Ms Gallagher is unfit to be tried. Dr Pullman did not expressly address that question but, as I will explain, her findings are completely consistent with that conclusion. 21To the extent that these reports contain a recitation of Ms Gallagher's personal circumstances and medical history I received those reports as evidence of the matters asserted. 22All of the medical reports record aspects of Ms Gallagher's personal medical history. It is apparent that verifying that history was difficult. With that note of caution I record that history as follows. 23Ms Gallagher was 50 years of age at the time it is alleged she committed the offence. She is now 53. Both her parents were married several times and she has one older sister and four half brothers. She advised Dr Pullman she was raised by her sister. She reported that her father was an alcoholic. She had persistent difficulties at school. She has a brief work history involving manual jobs. Ms Gallagher advised Dr Pullman that: "Throughout her late teens and her early adult life she reported several physically and emotionally abusive defacto relationships; including a marriage...which lasted approximately five years. She had one daughter however she reported that her daughter...had been removed by the Department of Childrens Services...because of her "abusive husband" and domestic violence in the home." 24Two aspects of her medical history should be noted. First, it is clear that Ms Gallagher has as long history of alcohol abuse. Dr Pullman reported her as stating that she says she was drinking daily at age 12. All of the material points to a continuous habit of excessive alcohol consumption since that time. 25Second, although the precise details differ in a number of respects, all of the reports record a history of Ms Gallagher having received various head injuries and suffering seizures. The reports include references to her having been in a number of motor vehicle accidents in her early 20s and to her later being the victim of bashings. All of the psychiatrists and psychologists accept the likely existence of a brain injury from trauma. Some of them speculate about damage to her frontal lobes. 26I will address each of the reports. 27Dr Nielssen diagnosed Ms Gallagher as having alcohol dependence and abuse disorder, brain injury, which was said to be both traumatic and alcohol related, and epilepsy. He expressed the opinion that: "Ms Gallagher demonstrated that she understood the charge, had some knowledge of the evidence in the case against her and had a general understanding of the nature of the proceedings. However, I believe she is unfit for trial because she has a communication disorder that affects her ability to provide reliable instructions or give evidence on her own account. Based on the lack of any change in her presentation between the ERISP interview and the recent interview I believe her condition is permanent and is unlikely to improve within twelve months." 28Dr Nielssen also expressed the opinion that Ms Gallagher may be able to raise a defence of substantial impairment by abnormality of mind to the offence with which she is charged. I express no opinion on that matter. 29Dr Pullman undertook an assessment of Ms Gallagher's intellectual and cognitive functioning. She concluded: "Her overall level of intellectual function fell within the Extremely Low range with her individual result falling below the 1st percentile (0.5). This means that in terms of her Full Scale IQ, Ms Gallagher was functioning at a level equal to or better than only 0.5 per cent of the normal population on this test. Her GAI score also fell within the Extremely Low range and at the 1st percentile. However there was a significant and unusually large difference between her verbal and non-verbal abilities, with such a large difference occurring in only 9.5 per cent of the population. Therefore her Full Scale IQ and GAI should not be interpreted. Her verbal and non-verbal abilities should be interpreted separately. Her non-verbal abilities such as non-verbal abstract reasoning, problem solving and visuoconstructional abilities fell within the Borderline range and at the 5th percentile. In contrast, her verbal abilities, including vocabulary, social comprehension skills, general knowledge and verbal abstract reasoning, all consistently fell within the Extremely Low range and at the 0.3 percentile." 30I would interpolate that criterion (g) that I have extracted from Presser emphasises the need for the person accused to be able to communicate with their legal representatives in order to convey their version of the events the subject of the charge. Bearing in mind that particular criterion, it is important to note Dr Pullman's conclusion that: "Her verbal skills are significantly weaker, falling in the Extremely Low range. This is not unexpected given her poor educational and vocational background; however this discrepancy is considered unusual, possibly supporting her reports of learning difficulties and hearing problems. She also has severely impaired attentional abilities, significant executive dysfunction, including mental flexibility, conceptional and abstract reasoning, planning and organisation, disinhibition and perseveration. Her new learning and memory is also Extremely Low. Her processing speed, basic language, visuospatial and visuoconstructional skills remain relatively intact. Finally, she endorses significantly elevated levels of depression, stress and anxiety at present." 31In his report of 1 March 2012 Dr Allnutt considered that the presentation and history of Ms Gallagher were: "...suggestive of an underlying cognitive disorder, however the nature and severity of this disorder can only be confirmed through formal neuropsychological assessment." 32Dr Allnutt concluded that Ms Gallagher had the capacity to understand the charges against her, the general nature of the proceedings and that she could, with the assistance of counsel, exercise her right to challenge. However Dr Allnutt stated: "My concern relates to her capacity to give instructions predominately more as a consequence of her probable memory problems than her inability to communicate; while she has some communication difficulty I do not believe this impairs her capacity to provide her version of the facts or let the Court know what it is (although in cross-examination she might be a more vulnerable person than most) but in interview with me she seemed to have some difficulty in understanding various court processes and seemed to be quite easily confused, suggesting she has learning difficulties; this became more apparent near the end of the interview when she seemed to have difficulty in understanding the consequences of a finding of guilty or not guilty, requiring some degree of clarification on my part; while she appeared to understand this I have concerns about probable underlying cognitive impairments that would impact on her capacity to follow proceedings and thus engage adequately and qualitatively with counsel during the course of the trial... My provisional opinion is that she is likely unfit to stand trial." 33This conclusion was expressed to be provisional because Dr Allnutt considered Ms Gallagher should undergo formal neuropsychological assessment. 34Dr Allnutt's second report of 13 April 2012 was prepared after such an assessment had been undertaken by Dr McMahon and made available to him. In that report Dr Allnutt concluded, having regard to Dr McMahon's findings, that: "... she has difficulty with regard to memory problems which impacts on her capacity to communicate adequately and that this would impair her ability to engage qualitatively with counsel during the course of the trial and to follow proceedings because she would be unable to maintain a recollection of events over time which would then impact on her ability to engage with the Court. Based on his [Dr McMahon's] assessment and my clinical interview, I believe she is unfit to stand trial as a consequence of short term memory problems derived from Dementia." 35Dr McMahon's report of 30 March 2012 sets out the results of an extensive neuropsychological assessment she had conducted on Ms Gallagher. Dr McMahon concluded: "Ms Gallagher's presentation, interpersonal style, speech and cognitive profile were consistent with her history of protracted heavy drinking, epileptiform disorder and history of head injury. The findings were equivalent to those of Dr Pullman and Ms White as outlined in their report of 11 October 2011, revealing a consistent picture of impaired cognitive function." And then further: "In my opinion given the cognitive difficulties as outlined above Ms Gallagher is unfit to stand trial due to significant limitations in her ability to engage in abstract verbal reasoning and remember complex verbal information across time suitably to inform her solicitor and instruct her defence." Conclusion 36It is no light matter to find a person unfit to be tried. A common consequence of a such a finding is that the person can suffer indefinite incarceration without trial. However Ms Gallagher is guaranteed a fair trial according to law. One aspect of that guarantee is that a criminal trial cannot proceed unless the accused person is fit to plead (see Eastman v R [2000] HCA 29; (2003) CLR 1 at [64] per Gaudron J). 37One of the most important criteria identified in Presser is that the accused person be able to give their counsel instructions, including their version of the facts, sufficient to make their defence and answer the charge. This criterion is to be considered in the light of the complexity and likely length of the trial. 38As I have stated, any trial that may occur will not be a straightforward matter and could occupy a significant amount of time. Not surprisingly, both the Crown and Mr Austin SC have submitted that I should find Ms Gallagher is unfit to be tried. This joint position reflects the unanimous opinion of the experts that I have already summarised. In my view it is overwhelmingly clear that Ms Gallagher is clearly not capable of giving her counsel sufficient instructions, including her version of the facts, to enable her to make her defence to the charge of murder and answer the charge against her. Accordingly I find that she is unfit to be tried. Orders 39I make the following orders: (1)I find the accused Patricia Anne Gallagher is unfit to be tried. (2)In accordance with s 14 of the Mental Health (Forensics Provisions) Act 1990 I refer this matter to the Mental Health Review Tribunal. (3)In accordance with s 14(b)(iii) of the Mental Health (Forensic Provisions) Act 1990 I remand Ms Gallagher in custody until the determination of the Mental Health Review Tribunal pursuant to s 16 of that Act. (4)I direct the Registrar of the Supreme Court to provide the following documentation to the Mental Health Review Tribunal within seven days: (a)A copy of this finding and my reasons. (b)A copy of the orders which I have made. (c)A copy of the transcript of these proceedings. (d)A copy of the psychiatric and psychological reports which are exhibits in these proceedings and; (e)A copy of the Crown case statement. 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: 11 May 2012