Supreme Court New South Wales Medium Neutral Citation: R v Briggs [2012] NSWSC 977 Hearing dates: 20, 21 August 2012 Decision date: 21 August 2012 Before: Latham J Decision: The accused is to be referred to the Mental Health Review Tribunal for assessment at the earliest opportunity and that the reports, the subject of the inquiry, be sent to the Tribunal for its consideration Catchwords: CRIMINAL LAW - procedure - fitness to plead or be tried - charge of murder - charge of sexual intercourse with child under 10 - mild intellectual disability Legislation Cited: Mental Health (Forensic Provisions) Act 1990 Cases Cited: R v Presser [1958] VR 45 Ngatayi v The Queen (1980) 147 CLR 1 Kesavarajah v The Queen (1994) 181 CLR 230 Category: Principal judgment Parties: Regina - (Crown) William Briggs - (Accused) Representation: Counsel L Lungo - (Crown) M Austin - (Accused) Solicitors S Kavanagh - Office of the Director of Public Prosecutions - (Crown) Legal Aid Commission of New South Wales - (Accused) File Number(s): 2010/298516 Judgment 1The accused, William Briggs, was to stand trial on 25 June 2012 at Tamworth Supreme Court on a charge of murder and a further charge of sexual intercourse with a child under 10 years. On 25 May, the court was informed by counsel for the accused that a question as to his fitness to be tried had been raised. Accordingly, the trial date was vacated and a fitness hearing was listed to commence on 20 August 2012. 2As will be apparent from the reasons that follow, the issue as to the accused's fitness followed upon an interview with the accused conducted by Dr Furst, a forensic psychiatrist, on 10 May. Further interviews were conducted with the accused on 29 May by Dr Hepner, clinical neuropsychologist, Dr Kavanagh, a forensic psychiatrist, on 3 June, Dr Stewart, clinical neuropsychologist, on 8 June and 13 June, and finally, a further interview with the accused by Dr Furst on 16 August. 3The terms of sections 11 and 12 of the Mental Health (Forensic Provisions) Act 1990 require the Court to approach the enquiry in a non-adversarial manner and to determine the question of fitness on the balance of probabilities. Neither party bears an onus in that respect. 4The principles that apply in determining an accused's fitness to stand trial are well-settled. They are stated in R v Presser [1958] VR 45 at 48 per Smith J and have since been approved by the High Court in Ngatayi v The Queen (1980) 147 CLR 1 at 8 and Kesavarajah v The Queen (1994) 181 CLR 230 at 246.6. In Presser, Smith J said: [An accused] 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 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 a 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 to 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. 5In brief terms, the case against the accused arises out of the events of 5 September 2010, on which day police received a call from a doctor at the accident and emergency unit of Narrabri Hospital in relation to the admission of a three-year-old boy, who was brought to the hospital by his mother with significant injuries. Those injuries consisted of severe head trauma, bruising to the scrotum and perianal lacerations. The child was later transferred to a hospital in Sydney, where he died the following day. 6The police commenced an investigation which led to the indentification of the accused as the person who was the child's principal carer on 5 September 2010. On that day, the accused was looking after his own daughter and the boy, who was the child of the accused's then partner. He was the only adult with the care of both children between approximately 8 am and 3 pm. 7Subsequent medical examination established that the severity of the impact to the head and was not consistent with a fall from a low height. Rather, the injuries were more commonly associated with severe head trauma due to shaking. The bruising to the inner and outer aspects of both ear lobes were more consistently explained by direct and forceful blunt trauma to either side of the head rather than with a fall. The bruising to the ears could also be explained by forceful pinching or twisting of the ear lobes. The bruising to the child's body was consistent with a number of forceful impacts, rather than with normal play-based activity. The bruising to the abdomen suggested forceful direct blunt trauma. The linear lacerations to the anus were consistent with recent penetrating trauma to the anal region. The injuries to the genitalia could not be adequately explained by a fall or by normal activity or play. 8The accused was spoken to by police at Narrabri Hospital at about 8 pm on 5 September 2010. A second interview at the hospital was conducted at about 9 pm. The accused was again interviewed at Narrabri police station on 6 September. In summary, the accused gave an account of caring for his daughter and the victim during the day. He observed nothing untoward about the boy. The boy was seen by the accused's mother at about 9:30 am watching television. At some stage in the course of the morning, the accused heard a loud crash and went outside to see the boy on the ground on his back, gasping for air. He said that the boy was wet and that the accused's boat, which had been resting on a boat trailer, supported by a bike, had fallen over. He picked the child up and took the child to his mother's. The accused gave an account to the child's mother of the child playing on the tank stand, sliding down and falling on a bar (said to be consistent with injuries to the child's penis). This occurred before the accused heard the loud bang from outside. 9The accused has largely confirmed his account to police in the course of various interviews with the doctors to whom I have referred. This factor is of significance only in respect of the opinion of Dr Kavanagh, who contrasted the accused's capacity to give a narrative account of his personal circumstances and a largely unsolicited account of the events of the day in question, with the accused's "reluctance" to answer questions in relation to his understanding of court processes. When pressed in relation to the latter, Dr Kavanagh noted that the accused's answers were very brief. 10Dr Kavanagh's report of 4 July 2012 is Exhibit A in the inquiry. Dr Kavanagh concluded that the accused does not have a psychiatric diagnosis but that he has suffered from learning difficulties since childhood, specifically with reading, mathematics and written expression. In her view, the accused did not exhibit independence in adaptive functioning. 11Dr Kavanagh was of the opinion that on a balance of probabilities the accused was fit to plead. It appeared to Dr Kavanagh that the accused grossly minimised his ability to comprehend basic concepts when specifically questioned in relation to fitness issues. In Dr Kavanagh's opinion, the accused understood the nature of the charges against him, was able to plead to the charges and understood the choice between a plea of guilty and not guilty, although he claimed to not understand the nature of the proceedings. On the question of the accused's ability to follow the course of the proceedings, so as to understand what is taking place in a general sense, Dr Kavanagh noted that the accused was able to name the judge, himself and his solicitor as relevant participants. He understood that his solicitor's role was to "fight for him" and that the DPP's role was "to fight against me". He understood that the judge was "the ref". He claimed that the jury were the "eyes and the ears" in the sense that the jury would be listening and looking at all the evidence. When asked what his specific role was in the proceedings, the accused appeared genuinely vague. The accused understood the substantial effect of the evidence against him, in the sense that it could be used against him and that the evidence consisted of "clothes, DNA, heaps of things". 12Ultimately, Dr Kavanagh expressed some doubt as to whether or not the accused fully understood the court process and would be able to sit through the court proceedings, including concentration and focus, challenging witnesses that he did not agree with and instructing his counsel. Dr Kavanagh thought it important that the accused be formally tested using neuro psychometric testing. Notwithstanding the subsequent availability of the results of that testing, Dr Kavanagh's evidence in the course of the inquiry did not substantially change, that is, she remained of the opinion that the accused was fit to stand trial. 13Dr Stewart's reports of 9 July and 16 July were Exhibit B in the proceedings. Dr Stewart submitted the accused to neuropsychological assessment and concurred with the assessment undertaken by Dr Hepner. In her opinion the accused was functioning within the extremely low range of general intellectual ability. The accused's full-scale IQ was rated as extremely low, within the first percentile of individuals in the population. This was said to reflect his general ability. The accused's non-verbal intellectual ability falls within the borderline range (the sixth percentile). His perceptual abilities were much stronger than his non-verbal abilities, consistent with persons with intellectual disabilities. The accused had difficulty learning new information and exhibited a number of examples of poor memory. His memory functions were in the extremely low range. 14Based on the accused's educational and occupational history, his performance on the administered tests, his adaptive functioning and the findings on clinical assessment, Dr Stewart was of the opinion that the accused has an intellectual disability, falling within the mild range. His intellectual disability makes it difficult for him to understand legal concepts and process information beyond a very superficial level and confirms that he has a very poor memory for novel information. 15In summary, Dr Stewart was of the opinion that the accused had the capacity to understand the nature of the charge against him, and can appreciate the choice between a plea of guilty or not guilty (although the subtleties associated with those plea options are beyond him). The accused's understanding of the nature of the proceedings was, according to Dr Stewart, superficial. Consistent with the accused's poor understanding, Dr Stewart was not persuaded that the accused could follow the course of the proceedings or that he understood the substantial effect of the evidence against him. Dr Stewart thought that the accused has the ability to provide his counsel with his version of events, but was doubtful that he could withstand cross examination because of his low level of intellectual ability. In that regard, Dr Stewart was not confident that the accused had sufficient capacity to be able to decide what defence he would rely upon. Having regard to these factors, Dr Stewart thought that the accused was not fit. 16Dr Furst's report of 22 May 2012 was Exhibit 2 in the proceedings. Dr Furst interviewed the accused on 10 May 2012. The accused's presentation during the interview was said to be consistent with either borderline intellectual functioning or mild developmental disability. On that basis, Dr Furst thought that neuropsychological testing would resolve that issue and provide a functional assessment of his adaptive behaviours. As at 22 May, Dr Furst's opinion was that the issue of fitness was borderline, however, he had significant concerns about the accused's capacity to make out his defence, if any, to the court. If intellectual disability was confirmed on psychometric testing, Dr Furst was of the view that the accused would therefore be potentially vulnerable to being led and therefore giving inappropriate or incorrect answers. On balance, Dr Furst thought that the accused was not fit to be tried. 17Dr Furst interviewed the accused again on 16 August, at which time he had access to the results of psychometric testing. According to Dr Furst, the testing confirmed a mild developmental disability with global deficits on understanding and difficulties with abstract reasoning. The reports to which Dr Furst had access and the further interview on 16 August confirmed for Dr Furst that the accused was not fit. 18Dr Hepner's report of 12 June is Exhibit 3 in the proceedings. A further report of 19 August is Exhibit 4 in the proceedings. Dr Hepner administered neuro psychometric testing to the accused and was of the opinion that the accused's full-scale IQ is in the first percentile of the population (extremely low range), that he demonstrates concurrent deficits in adaptive function and that he was therefore in the range of mild intellectual disability. 19In addition to his limited intellectual function, the accused demonstrated impairments in higher level executive functions (involving verbal and non-verbal reasoning, verbal generativity, speed and flexibility of thinking and visuospatial planning and organisation), attention, processing speed and single word reading. He was also impaired in his memory function. Dr Hepner was of the view that the accused was not attempting to present in a deliberately impaired manner and that the overall findings indicated that he was motivated during the assessment. 20Dr Hepner considered that the accused would struggle to interpret and respond to concepts of a certain order of complexity. She assessed the accused against the Presser criteria and concluded that he was able to understand the nature of the charges against him, was able to plead to the charge, but did not possess an adequate understanding of the full implications of entering a plea. The accused's understanding of the nature of the proceedings was said to be limited and superficial. The fact that he had an inadequate understanding or memory of legal processes, despite his legal circumstances being explained to him slowly and on several occasions, was consistent with his intellectual and other cognitive impairments. For these reasons, Dr Hepner was concerned with respect to the accused's ability to follow the course of the proceedings. The accused did not appear to demonstrate an adequate understanding of the substantial effect of evidence against him, although the accused was able to provide an account of his version of events to his counsel. Nonetheless, Dr Hepner had significant concerns with respect to the accused's ability to instruct counsel, make out his defence and decide what defence he would rely upon. For the combination of these reasons, Dr Hepner did not think that the accused had met all of the Presser criteria. 21Having regard to these opinions and to the legal requirements pertaining to fitness to be tried, I am persuaded on the balance of probabilities that the accused is not fit. It must be acknowledged that the initial impressions of the examining psychiatrists Dr Kavanagh and Dr Furst did not allow them to express a definitive opinion as to the accused's fitness. However, any misgivings experienced by Dr Furst were put to rest by the results of the psychometric testing. To the extent that Dr Kavanagh remained of the view that the accused was fit, this would appear to be inconsistent with her own observations of the accused's very limited capacity to follow the course of the proceedings, in particular the significance of his own role in the trial. For my part, the decisive factor is the very limited nature of the accused's capacity to process information of a conceptual nature, which would impact adversely on his capacity to appreciate the nature of the evidence against him, the course of the proceedings and his capacity to give meaningful instructions to counsel. 22I direct that the accused be referred to the Mental Health Review Tribunal for assessment at the earliest opportunity and that the reports, the subject of the inquiry, be sent to the Tribunal for its consideration. 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: 29 August 2012