R v McKellar [2012] NSWSC 1567

Supreme Court New South Wales

Medium Neutral Citation: R v McKellar [2012] NSWSC 1567 Hearing dates: 27 November 2012 Decision date: 14 December 2012 Jurisdiction: Common Law - Criminal Before: Latham J Decision: Fit to stand trial Catchwords: CRIMINAL PROCEDURE – fitness to stand trial – cognitive capacity of accused to understand evidence at trial and nature and course of criminal proceedings – conflicting psychological evidence – accused found fit to stand trial on balance of probabilities 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: Interlocutory applications Parties: Regina - (Crown) Shane Thomas McKellar - (Accused) Representation: Counsel P Barnett SC - (Crown) B Walsh - (Accused) Solicitors Solicitor for Public Prosecutions - (Crown) JRR Legal - (Accused) File Number(s): 2011/180041 2011/167627

Judgment 1The accused, Shane Thomas McKellar, has been charged with the murder of Bruce Wentworth Delaney on 21 May 2011, the armed robbery with the infliction of serious bodily harm upon the same victim on the same day, and possessing the proceeds of crime. A question has been raised concerning the accused's fitness to be tried. The accused has not been arraigned. 2It is alleged that the accused forced entry into the home of the victim, an 81-year-old man, who was then living next door to the accused's girlfriend, with the intention of robbing him. The victim was seen by a neighbour with a puncture wound behind his ear and to his stomach. He later died in hospital on 22 May 2011. The prosecution case contains alleged admissions made by the accused to other persons, observations by witnesses of a male person entering the victim's home after jumping over the fence with a golf stick and a knife, and DNA evidence, which places the accused inside the victim's home. A DNA profile matching that of the accused was found on the handle of a golf club in the home. 3The determination of the accused's fitness to be tried is on the balance of probabilities. There is no onus on any party in respect of that issue. The proceedings are not conducted in an adversarial manner : Mental Health (Forensic Provisions) Act 1990. 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. 5The evidence relating to the accused's fitness to stand trial appears from the reports of Dr Lisa Brown, consultant and forensic psychiatrist, Dr Gary Banks, clinical neuropsychologist, Dr Stephen Allnutt, psychiatrist, Dr Susan Pullman, clinical neuropsychologist, and records relating to the accused's treatment whilst in custody. In addition, there is a report from Dr John Kasinathan, psychiatrist, prepared for the purposes of an unrelated court appearance in February 2005. 6Dr Brown and Dr Allnutt also gave evidence in the course of the proceedings. The opportunity afforded by their evidence to seek clarification of the matters raised in their respective reports was valuable in terms of allowing the Court to reach a determination in the matter. 7Dr Brown assessed the accused during a 30 min interview on 20 August 2012. However, the doctor had previously assessed the accused in June 2007 in relation to his then fitness to stand trial. Dr Brown noted that the accused appeared to have gained weight since he was assessed five years previously. The accused was wary of being interviewed and despite a number of explanations being provided to him about the aim of the assessment, the accused repeatedly stated that he did not understand why he was being interviewed. He made limited eye contact and repeatedly stood and paced around the room, particularly when questions relating to the Presser criteria were asked of him. The accused had a mild tremor in both hands. He appeared more settled when responding to basic questions about his general progress and he repeatedly stated that he did not remember ever having attended court or anything to do with the charges against him. 8The accused's mood state was described as irritable and slightly hostile when questioned about issues relating to his fitness to plead. He was on occasions difficult to understand and gave brief unelaborated answers to questions. He displayed no disorganisation of his thought processes, although he remained silent for lengthy periods of time. He did not appear to be responding to auditory hallucinations nor did he express paranoid ideas. His concentration was limited and he needed reminders of questions on a number of occasions. Dr Brown was of the view that the accused did not focus on the questions that were asked. His memory for both long-term and short-term events was extremely poor, particularly when considered together with the findings in relation to his mental state in June 2007. 9Dr Brown considered the neuropsychological assessment carried out by Dr Pulman on 17 April 2012, and Dr Allnutts' reports of 11 January 2007, 18 July 2007, 6 September 2007 and 15 February 2012. Dr Brown also took into account that the accused was found fit to plead in October 2007 in relation to a count of robbery whilst armed with wounding (to which the accused entered a plea of guilty) and the transcript of proceedings in Dubbo District Court on 26 October 2007, wherein the results obtained by a psychologist were discussed by Judge Woods QC DCJ. A neuropsychological assessment carried out on 11 October 2007 was also taken into account, as was the record of interview conducted with the accused on his arrest for the instant offence. Dr Brown also had access to other statements in the prosecution brief. Finally, Dr Brown had regard to the records of the Department of Ageing Disability and Home Care, with which the accused had had some involvement in mid 2011, and to the records of Justice Health. 10Dr Brown's psychiatric diagnosis noted that the accused reported experiencing up to twice daily auditory hallucinations of a threatening type. These reports were also made to Dr Allnutt in February 2012, together with "ideas of reference", namely the phenomenon of claiming to receive messages from the radio and/or television. The accused recently complained of psychotic symptoms within the prison setting. Both the auditory hallucinations and the persistent psychotic symptoms were recognised by Dr Brown as potentially affecting his capacity to focus in the course of the trial. 11Dr Brown's diagnosis in June 2007 was that the accused suffered from a chronic psychotic disorder, probably of a schizophrenic type, which has been complicated by intermittent but long-term poly-substance abuse. Dr Brown's present diagnosis does not differ in that respect. 12However, with respect to the accused's fitness to plead, Dr Brown entertains reservations with respect to the accuracy of the information provided by the accused and, in particular, doubts that the accused's professed profound memory difficulties and complete lack of understanding of court procedures genuinely reflect his real abilities. Dr Brown notes that he has had previous experience of court proceedings and demonstrated a capacity to provide a basic outline of court procedures to Dr Allnutt in February 2012. Against this background, Dr Brown saw no reason why the accused would be unable to recall that information in the course of her interview. 13Dr Brown notes that the psychologist's report of 17 April 2012 (Dr Pulman) assumed that the accused's "don't know" responses were characteristic of an amnesic state. To the contrary, Ms Farrelly, psychologist, referred to the accused in October 2007 as a likely malingerer with respect to his severe memory deficit. Dr Brown also notes that the interview conducted with the accused at the time of his arrest is not consistent with his current lack of recall of basic information, including details personal to the accused. The accused's intellectual capacity is consistent with mild to borderline intellectual functioning. However both in October 2007 in the District Court proceedings and in the course of the accused's interview with Dr Brown, the accused was attempting to portray himself as severely intellectually disabled. 14Dr Brown went on to observe that the Justice Health records do not support the degree of memory impairment claimed by the accused. The accused's borderline to mild intellectual delay does not render him unfit to plead from a cognitive viewpoint. The accused's medication has reduced his hallucinations and potentially improved his concentration for the purposes of trial, yet his perceived reluctance to co-operate with questioning in relation to the Presser criteria and other issues related to fitness to plead present an obstacle to any further understanding. Ultimately, Dr Brown is of the view that the accused's chronic psychotic disorder is of limited relevance to the question of his fitness to plead. 15In June 2007, Dr Brown considered the accused to be fit to stand trial, "if certain provisions were made for him to have a support person available which would help to offset some of the intellectual difficulties which may affect his concentration and capacity to understand the trial process in an adequate manner." 16Dr Brown amplified her opinion in the course of her evidence. In finding the accused fit to plead, Dr Brown acknowledged that there would need to be allowances made for adjournments in order to meet some of the accused's difficulties. Since completing her report, she received a copy of the records from Justice Health up to and including 15 November 2012. That material did not cause her to change her opinion. 17Dr Brown considered that the accused's repetitive pattern of behaviour in professing a complete lack of memory was inconsistent with the accused's capacity to discuss issues unrelated to court procedures. That professed lack of memory applied selectively to questions relating to his fitness to plead. Dr Brown noted the contrast with the accused's apparent co-operation with police in the course of his interview. His behaviour was described as appropriate to that setting and he provided a large amount of information in response to many questions. The accused held his concentration adequately throughout the interview and his answers to the questions were appropriate. In that regard he did not demonstrate any thought disorder or disorganisation in thought processes, common to people in an acutely psychotic state. 18In particular, the accused's long-term memory relating to the occupants of Bourke, street names and similar information, which he displayed in the course of his interview with the police could not be reconciled with his claim to have forgotten that information in more recent times. Dr Brown acknowledged that the interview was in May 2011 and that the accused's mental state may have changed since that time. 19The observations included in the Justice Health records of the accused playing a card game on 9 October were thought to be significant from Dr Brown's viewpoint. The card game was described as complicated, yet the accused was seen to be advising others of the rules. That activity, according to Dr Brown, is inconsistent with short-term memory problems. The accused's claim that he had learnt the card game whilst at MRRC was not consistent with any impairment of his short-term memory. 20Dr Brown noted that the accused was capable of reflecting upon answers that he had given to questions where those answers were nonsensical or unreasonable. The accused's capacity to recall his mother's mobile number by indicating the respective digits on the phone suggested intact memory functioning. 21Entries in the Justice Health records by treating clinicians who expressed the view that the accused was "malingering" on a number of occasions was thought to be significant by Dr Brown in that the Justice Health staff had the opportunity to assess the accused on multiple occasions on a day-to-day basis. That ongoing assessment was more advantageous than an assessment conducted on one or two occasions. The references to malingering referred to both the accused's alleged cognitive impairment and the extent of his psychosis. 22Dr Brown was unable to explain the accused's alleged inability to recall the number of siblings he had or the number of children he had, including their names. Ordinarily in her experience, even individuals with severe brain injury or quite severe cognitive impairment from childhood can readily provide the names of family members and the number of children. 23Dr Brown further noted in cross-examination that, notwithstanding that the document recommending the transfer of the accused to a Correctional Centre from a mental health facility (dated 13 November 2012) did not assert that the accused had ceased to be mentally ill, her understanding of the views of the accused's treating psychiatrists within the Justice Health system was that after monitoring and treatment of what appeared to be a treatment resistant psychosis, the staff had not found evidence of that condition and on that basis had withdrawn the accused's medication and arranged for him to be transferred. 24Dr Brown accepted that the accused may well have suffered auditory hallucinations in the past, either because of drug use or because of previous episodes of a psychosis. However, an individual with an active psychosis ordinarily demonstrates disorganisation in their thought processes and is difficult to follow and understand. Dr Brown's understanding of the Justice Health records was that their observation of the accused did not allow them to confirm a diagnosis of schizophrenia. 25Dr Brown acknowledged that the accused's marked cognitive impairment would make it difficult for him to concentrate over extensive periods of time and that additional support and information from counsel at trial would be required. The accused's capacity to follow court proceedings would obviously be affected by the complexity of the material. If the accused was experiencing auditory hallucinations, that would impact upon his capacity to follow proceedings over a 4 to 6-week period. 26Dr Banks supplemented his report of 31 August 2012 by his evidence, following access to the most recent records from Justice Health. Dr Banks agreed with Dr Brown's assessment of the accused, whilst noting that the accused was observed and monitored on a 24-hour day 7-day a week basis for a period of 6 weeks when he was housed within the Long Bay Hospital. There were a number of changes to the accused's behaviour over that period of time. Within a matter of days he was recorded as socialising with peers. He demonstrated a capacity to confidently and competently engage with other inmates, notwithstanding changes to his environment. He was seen to engage in lengthy discussions and played card games with other inmates. 27The accused also demonstrated a capacity to recall conversations over time, beyond what would be considered short-term memory, together with a capacity to retain and retrieve information and reflect upon it. Dr Banks also agreed with Dr Brown that the accused was in the borderline range of intellectual functioning, in that he was in the mildly impaired or mildly disabled range of intellectual functioning. The level of cognitive function and competence demonstrated by the accused when interviewed in May 2011 was consistent with the observations of the accused carried out during the 6-week period in Long Bay Hospital. Moreover, the accused's adoption of a defensive posture only to particular questions demonstrated a capacity to be selective. Dr Banks acknowledged that the accused's mental health was capable of fluctuating from time to time and that his condition could be exacerbated by incarceration. 28The potential for the routine of gaol to improve the accused's overall health, together with the stabilising effect of medication and its reduction, was also capable of improving the accused's psychological and cognitive state. The repeated engagement in the card game by the accused, including teaching the game to others, indicated a capacity to learn, acquire and retrieve new information and thereby cognitively benefit the accused, in that he was engaging in thought stimulating and cognitively challenging activity on a daily basis. The accused's selective answers to Dr Banks during interview indicated to him that the accused did not want to disclose the information, rather than not having the information. 29In Dr Banks' opinion, the observed behaviour of the accused over the 6 weeks that he had been in Long Bay Hospital provided ample evidence that each of the Presser criteria would be met quite clearly and consistently over that period of time. The accused was capable of asserting a position, challenging other people in relation to their decisions and seeking a second opinion from others where he thought that was advantageous. 30In Dr Allnutt's report of 23 July 2012, he stated that the accused had "probably an underlying cognitive capacity to understand court processes in general but that his auditory hallucinations are of a nature and severity that they impact on his capacity to engage in assessment and this would pose the same problem for ... counsel. [The accused is] vulnerable to be easily distracted during the court process and on balance .. he is unfit to stand trial because he would be unable to communicate qualitatively with ... counsel to conduct a defence or to follow proceedings." 31Dr Allnutt gave evidence that supplemented his report of 23 July 2012. Dr Allnutt also had access to the most recent Justice Health records. In Dr Allnutt's view the conclusions of the psychiatrists who had assessed the accused at Long Bay Hospital did not take sufficient account of the accused's long psychiatric history. The assessments carried out in 2005 by Justice Health psychiatrists resulted in a diagnosis of chronic psychotic disorder, namely schizophrenia with auditory hallucinations, referential ideas and persecutory beliefs. 32Dr Allnutt assessed the accused in 2007 when the accused presented in a manner which was consistent with the way that he presented to Dr Allnutt in 2012. Dr Malik, who saw the accused on a number of occasions, was sufficiently concerned about the accused's mental state that a diagnosis of treatment resistant schizophrenia was thought appropriate. Dr Allnutt noted that it was the most severe form of schizophrenia which required medicating with Clozapine. It was for that reason that the accused was referred to the hospital. 33It was only after the accused's arrival at the hospital that the opinion changed. It was only then that the accused's medication was changed and increased, resulting in an improvement in the accused's mental state, if not recovery. 34Dr Allnutt observed that it was only when the accused arrived in hospital on 21 October that he saw a new psychiatrist, which coincided with the accused becoming reluctant to engage with the psychiatrist. Dr Allnutt also agreed that the cognitive testing supported the conclusion that the accused was exaggerating his memory problems and perhaps to some degree fabricating them. Dr Allnutt thought it was a reasonable conclusion that the accused was exaggerating cognitive difficulties. 35As a result of this opinion however, the clinicians became suspicious of the accused and sought a second opinion from Dr Simonelli. The latter's assessment of the accused on 1 November 2012 resulted in Dr Simonelli's agreement with Dr Farrah and Dr Reznick, namely that the accused did not have a mental illness. In Dr Allnutt's opinion, these psychiatrists' exclusion of a psychosis is based on the fact that the accused was said to be presenting only with auditory hallucinations. They queried whether the hallucinations were true hallucinations. However, in the notes they make no mention of prior reports of ideas of reference or persecutory beliefs, both of which the accused had reported consistently since 2005. 36In respect of the accused's behaviour on the ward, Dr Allnutt noted that if the accused was responding to treatment one might not observe psychotic behaviour. The absence of any behavioural indications does not mean that a person suffering from a psychosis is not thinking or experiencing things consistent with a psychosis. 37Dr Allnutt also noted that the accused's mother provided a history with respect to the accused of agitation and paranoid thoughts, together with some form of disorganised presentation and thinking. These were said to be associated with the accused's drug use. Whatever the observations of the accused playing card games, there were no notes that demonstrated any investigation had been conducted into his proficiency in those games. A note of 11 October 2012 records the accused as "struggling advising simple addition problems when filling in the buyout forms. Approached other patients for assistance with calculating his buyout balance. Poor concentration when playing card games." 38Dr Allnutt pointed to further notes in October and November 2012, wherein the accused is described as "paranoid", "hearing voices" and hearing the TV talking to him. Dr Resnick's and Dr Farrah's reference to "inconsistent account of auditory hallucinations. States none of the treatment has helped" is not inconsistent with auditory hallucinations. 39Dr Allnutt acknowledged that malingering was a possibility but that he was less inclined to rule out a chronic mental illness, given the accused's history and the accused's presentation to him. The accused's auditory hallucinations and ideas of reference are symptoms that impact upon his concentration. The accused's schizophrenia aggravates his borderline to mild intellectual disturbance. 40In summary, Dr Allnutt believes the accused to be a person with limited to mild intellectual cognitive difficulties, uneducated, relatively illiterate, with a chronic psychotic illness that would have further effects on his mental capacity, who is probably psychotic at the present time and experiencing auditory phenomena that compounds his ability to engage and aggravates his anxiety about his circumstances. The accused is said to be vulnerable to not engaging because of the combination of his intellectual difficulties and active symptoms of psychosis to some degree, although it is difficult to say to what degree. These factors cause the accused to adopt a defensive position and refuse to engage. 41Whilst the accused was transferred to hospital in order for Clozapine to be administered, that was not done because of the conclusion that the accused was not suffering from a mental illness. In addition, the accused's other medication was reduced, potentially causing additional problems in the future. The accused has remained in Long Bay Hospital. 42In Dr Allnutt's opinion, the accused's vulnerability to anxiety and reluctance to engage compromises his ability or capacity to participate meaningfully in a lengthy and complex trial. Dr Allnutt thought that the accused did understand the Presser criteria, but that he would have difficulty engaging in or following the trial process. The accused would also have some difficulty in giving evidence in the witness box. 43In the result, Dr Allnutt was of the view that the accused was not fit to stand trial because counsel would find it difficult to engage him and get instructions. Whilst the accused may be exaggerating his reports of auditory hallucinations and the extent of his cognitive problems, that did not require a finding that he was malingering in relation to his psychotic symptoms. 44Dr Allnutt did however acknowledge that if the accused was given an appropriate amount of time to engage with counsel, on the understanding that he was obliged to participate in the trial process, the question of his fitness might differ. However, Dr Allnutt was concerned that the accused's medication has been reduced. If the medication was reinstituted and if the accused received assistance with his anxiety, he may be fit for a non complex trial of no more than a week's duration. Present indications are that the trial will take two to three weeks. 45Dr Allnutt acknowledged in cross-examination that a reasonable explanation for the accused's behaviour is that he may view his mental illness and his symptoms as a way of avoiding the trial process. 46At the conclusion of the evidence of these witnesses, the Court took the luncheon adjournment. Upon resumption, the accused's counsel informed the Court that the accused was in a very agitated state and wished to be absent from the court room for the remainder of the proceedings. Counsel indicated that the accused found the evidence very distressing, in particular the comments between counsel and the bench just before lunch particularly distressing. That exchange was in relation to the evidence foreshadowed in the prosecution case and the likely length of the trial. There is some force in the Crown's submission that this reaction on the part of the accused is evidence of a capacity to follow court proceedings. 47Dr Pullman gave evidence of conducting a neuropsychological assessment of the accused on 15 and 24 May and 15 November 2012. On each occasion the accused appeared agitated, anxious, and restless, with a persistent tremor in both his hands. Dr Pullman's assessment was restricted to determining the accused's cognitive functioning and his memory functioning. Dr Pullman disavowed any basis upon which she could express a view as to his fitness for trial. 48Dr Pullman spoke to the accused about the card games that he was playing in custody. The accused responded that he didn't watch television because of the voices that he heard. The accused's account of the card game was that hearts were "the best card" and "the one to go for". The accused was unable to give Dr Pullman any further explanation of what the game involved. Dr Pullman did not express a view as to whether or not the accused was unable to provide a further explanation or whether there was another reason. 49The accused's instructing solicitor has had considerable contact with the accused over a period of time. The solicitor also has a background in mental health and some experience within that field over a period of 25 years. The accused's solicitor was of the view that the accused did not appear to understand the role of people involved in a trial, including the judge, the solicitor and the jury. In the solicitor's opinion, the accused did not appear to understand the purpose of the fitness hearing. The accused claimed he was hearing voices and seeing the image of a black man and was unable to tell the solicitor the date or the day of the week. 50The accused's counsel relied on the solicitor's affidavit as a critical piece of evidence in the fitness hearing. I accept that the solicitor's experience of the accused is relevant. However, there is a considerable body of expert opinion from a number of forensic psychiatrists that carry more weight in that regard. 51Taking all of the evidence in the proceedings into consideration, I am satisfied on the balance of probabilities that the accused is fit to stand trial. I recognise that he may require additional adjournments to those usually granted to allow his counsel to communicate effectively with him and manage his anxiety around court proceedings. My finding reflects an acceptance of the evidence of those psychiatrists and registrars who have observed the accused in custody over a significant period of time, together with the evidence of Dr Brown and Dr Banks in particular. 52It is common ground that the accused is exaggerating his cognitive deficits and even Dr Allnutt acknowledges that the accused may also be exaggerating the existence of auditory hallucinations. I accept that the accused suffers from schizophrenia, although whether he is suffering from a more chronic psychotic disorder is more controversial. Even allowing for that possibility, I am satisfied on balance that his psychotic disorder has limited impact upon his fitness to stand trial. Dr Allnutt accepts that the accused probably understands the Presser criteria and, to the extent that his refusal to engage and his anxiety affects his capacity to follow proceedings and instruct counsel, that limitation can be addressed by careful management of the proceedings. 53It is however, important in my view that the accused continues to be assessed and medicated according to those assessments. His long-standing history of mental illness strongly suggests that it will wax and wane over time. 54I remand the accused in custody to the arraignments list on 1 February 2013. 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: 21 December 2012