District Court New South Wales Medium Neutral Citation: R v JH [2018] NSWDC 65 Hearing dates: 12 March 2018 Decision date: 16 March 2018 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Accused held unfit to stand trial Catchwords: Fitness to be tried; "Presser" criteria Legislation Cited: Crimes Act 1900 Mental Health (Forensic Provisions) Act 1990 Cases Cited: R v Kesavarah (1994) 181 CLR 230; [1994] HCA 41 R v Presser (1958) ALR 128 Category: Principal judgment Parties: Director of Public Prosecutions (Crown) JH (Accused) Representation: B Queenan (Crown S Walsh (Accused) File Number(s): 16/229544 Publication restriction: S 7 Suppression and Non-Publication Order for identity of Accused and Complainants inquiry into the fitness of the accused to stand trial Introduction 1. On 12 March 2018 an inquiry was held under the provisions of the Mental Health (Forensic Provisions) Act 1990 ("MHFPA") as to the fitness of the accused to stand trial on seven charges contained in an Indictment. 2. The accused had not been arraigned on that Indictment and I determined, pursuant to s 8 of the MHFPA, that an inquiry should be conducted before the hearing of the proceedings in respect of the offences contained in the Indictment. 3. Section 11 of the MHFPA provides that the question of a person's unfitness to be tried for an offence is to be determined by Judge alone. Section 11(2) provides that any determination must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. Section 12 provides that the inquiry is not to be conducted in an adversary manner and that the onus of proof does not rest on any particular party. 4. At the conclusion of the inquiry into the accused's fitness to be tried, I determined that I had come to a conclusion that the accused was unfit to be tried and that I would deliver my reasons on Friday 16 March 2018, as I was presiding over a busy list on circuit in Taree, with a trial due to commence. The following reasons include the principles of law relied on by me and my findings of fact. Evidence on the fitness inquiry 1. The Crown case included the Crown case statement which became Ex A, a report of Dr Steven Allnutt dated 5 June 2017 (Ex B), and report of Dr Susan Pulman dated 22 February 2018 (Ex C). 2. The accused relied on a report of Ms Laura Durkin, clinical and forensic psychologist dated 20 February 2017 (Ex 1). The Crown case 1. Each of the seven charges on the Indictment occurred on 24 July 2016. They involved two complainants, TW, aged 10 years, who had a cognitive impairment and suffered from dyspraxia, and MC, who was eight years. The two complainants were friends and would regularly spend time with one another. 2. The accused was aged 23 years at the time of the alleged offences. He suffered cerebral palsy and uses an electric wheelchair for transportation. He lives in Taree with his parents. 3. On Sunday 24 July 2016, the two complainants were riding their pushbikes together in Taree, when they ran into the accused. The accused led the two complainants to a set of stables near the Taree racecourse. 4. Inside the stables, the Crown alleges that a number of offences occurred. Counts 1-4 on the Indictment allege offences involving the complainant TW. They involve breaches of s 61O(1), s 61M(2), and two offences pursuant to s 66C(2) of the Crimes Act 1900. Counts 5, 6 and 7 on the Indictment involve the complainant MC and involved two breaches of s 61O(2) and one breach of s 61M(2) of the Crimes Act 1900. All of the charges involve serious criminal offending, and each carries lengthy maximum penalties. 5. The complainant TW told his parents and grandparents about the conduct of the accused and the complainant MC made a disclosure to his mother about what took place. Both complainants participated in JIRT interviews and both stated this was the only occasion on which the accused had done these acts. 6. The accused was arrested and underwent an ERISP interview on 29 July 2016. In that interview he denied going anywhere with the two complainants. He stated he did go to the stables located at the racecourse, but not with the two complainants. The allegations made by the two complainants were put to the accused and he denied the allegations. He then made admissions to being in the stables with the two complainants on 24 July 2016, but denied the specific allegations. The medical evidence 1. In his report dated 5 June 2017, Dr Allnutt set out the documents with which he was qualified, which included the ERISP interview of the accused and the transcript of the complainants' JIRT interviews. Under the heading "Clinical issues", he set out details of his consultation with the accused. In that consultation the accused had expressed suicidal ideation. When asked whether he understood the charges against him, the accused said, "They reckon I had sex with two boys". When asked when it happened, the accused said he could not recall and then said, "I didn't, I know I didn't". He said he was going to plead not guilty, but when asked why, he said, "I don't know". 2. When asked what advice his lawyer gave him, he said, "I can't remember, to be entirely honest". He then asked Dr Allnutt, "Am I in trouble with you now?". When asked why he asked this, he said, "I don't know", and became slightly tearful. 3. The accused was asked about his understanding of what would happen when he went to court and the role of his lawyer, the prosecution and judge. Generally he responded that he did not know 4. Dr Allnutt took a psychiatric and medical history. The accused had been diagnosed with cerebral palsy and ADHD. Three years prior, he had been diagnosed with depression for the first time and was prescribed Lexapro, an anti-depressant which he had continued to take since then. 5. The accused had attended high school until year 8. He was unable to read or write. He was then home schooled until year 12, but did not obtain a certificate. After leaving school he had worked at Valley Industries, however, had been subjet to a sexual assault in the workplace. He continued to work part-time. 6. Dr Allnutt's opinion was that the accused had the capacity to understand what he is charged with, and a capacity to plead to the charge. Dr Allnutt was of the opinion that the accused would have difficulty understanding the right of challenge conceptionally, however, with the assistance of his lawyer, he would be able to challenge the jury. He also had the capacity to let his counsel know his version of the facts, however, he was a vulnerable witness and cross-examination of the accused would need to be done "in a sensitive and empathetic manner as he would be prone to becoming anxious". He then stated: "There are concerns about the accused's capacity to place experiences in time, and therefore his capacity for temporal understanding of events, and this might impact on the quality of his communication with his counsel. The accused is a disabled man with cerebral palsy who also manifests symptoms of depression, and it is my opinion that many of his responses to questions around fitness relate to anxiety, causing disengagement from the process, as well as fear about the consequences that he might face. The accused is on balance fit to stand trial, but it would be prudent to accommodate the accused with shorter periods of hearing, frequent breaks and the presence of a support person such as his sister or mother. There is a risk that he might disengage from the legal process and then disengage from his lawyers. This suggests that during the hearing the issue of fitness might need to be reconsidered." 1. Dr Susan Pulman, forensic psychologist and clinical neuropsychologist, provided a report dated 22 February 2018 (Ex C). She was qualified with the same documentation as Dr Allnutt, and also with the reports of Dr Allnutt and Ms Durkin, psychologist. She also administered certain psychological tests, however, due to a level of fatigue displayed by the accused, only selective testing was carried out. Therefore a full scale IQ could not be calculated. However, his verbal comprehension index fell in the borderline range and the third percentile. That meant that 97% of the normal population would score at the equivalent or a higher level on that test. Dr Pulman opined that the accused was likely to meet criteria for a mild intellectual disability. 2. Under the heading "Clinical opinion", Dr Pulman stated that a comprehensive measure of intellectual functioning was unable to be completed due to the accused's psychomotor difficulties associated with his cerebral palsy. It was her opinion that he does understand the nature of the offences for which he has been charged and can plead to those charges. He demonstrated during his ERISP interview that he can provide his version of events, and could indicate when he was unsure of a question. However, he became fatigued after two hours of assessment and would require adequate breaks and a reduced number of hours in hearing length each day. 3. It was Dr Pulman's opinion that, on balance, the accused was fit to stand trial from a cognitive perspective. She went on to state: "However, provisions for adequate breaks and the presence of a support would be required. I conur with the opinion of Dr Allnutt, that the issue of fitness may need to be reviewed during the trial, should JH disengage from the court proceedings." 1. The accused relied on a report of Ms Laura Durkin, clinical and forensic psychologist, dated 20 February 2017 (Ex 1), Ms Durkin was qualified with limited documentation, and not with the ERISP interview of the accused or the JIRT interviews of the complainants. Ms Durkin noted that the accused made a concerted effort to participate in the interview process, however, his responses lacked depth and he did not appear to comprehend some of the questions posed, and seemed to find it difficult to elaborate on his account without the support of his sister, who was in attendance. He was a poor historian and his account was not well structured nor coherent. She took a medical history that he had been diagnosed with cerebral palsy, but also suffered with epilepsy, causing petit mal seizures, for which he was prescribed Epilium, an anti-convulsant. His fine motor skills were poor as a result of his cerebral palsy and he suffered tremulousness. He was also prescribed the anti-depressant Lexapro. Ms Durkin also took a history of suicidal ideation. He was unable to undergo cognitive assessment because of his disabilities. In assessing his fitness to stand trial, Ms Durkin reported as follows, having applied the "Presser Criteria": (1) The accused's understanding of the nature of the charges The accused was accurately able to outline what he had been charged with, namely, a sexual assault He believed sex implied sexual intercourse has occurred and did not appear to have insight into what might constitute other forms of sexual conduct. Thus, the depth of his understanding about the allegations against him was questionable. (2) The accused's understanding of the nature of the court proceedings When asked what aspects of the court process he understands, the accused responded that the court 'tells you what you have to do'. He could not clarify that statement further, suggesting he has little understanding of the process he is currently engaged in. He did appreciate the purpose of evidence or how it was used, did not understand the purpose of a trial or the role of witnesses and juries, and was not aware of his role in the legal process. (3) The accused's understanding of his ability to challenge jurors The author noted that the accused did not seem to grasp the concept of challenging the jury (4) The accused's ability to understand the evidence The accused's understanding of the term evidence was limited and he was unable to elaborate on what evidence is to be brought against him, other than stating that the complainants claim that "something happened". (5) The accused's ability to decide on what defence to offer The accused had a basic understanding of the pleas 'guilty' and 'not guilty', but was unable to offer anything further of substance regarding the defence he would make, other than denying that they occurred. He was unable to appreciate that his role was to instruct his legal team and to assist in his defence. His capacity to do so was therefore limited. (6) His ability to explain his version of the facts to counsel in court The accused said he would be able to explain his version of events to his lawyers, but said he would not. He perceived his role in the process as passive and does not believe that he is able to instruct his legal team. 1. Ms Durkin was of the opinion that the accused is not fit to participate in a trial, that he had the capacity to understand the charges and plead to them, but does not believe that he has the basic knowledge or capacity to develop a sufficient understanding of the legal processes and procedures to comprehend the courtroom process, even in a general sense, assist in his defence, understand the impact of evidence or challenge jurors. Further, the process would be emotionally and physically exhausting for the accused, which would further compromise his capacity to participate in and understand the process to a level required for him to be considered fit. The Crown submissions 1. The Crown submitted that the court would prefer the reports of Dr Allnutt and Dr Pulman, which were both more recent in time than Ms Durkin's report, and also contained opinions that were based on the complete Crown brief, including the accused's ERISP interview and the JIRT interviews of the complainants. Both reports established that the accused had an ability to learn, notwithstanding his cognitive impairment. 2. The Crown conceded that the opinions expressed in Exhibits A and B, to the effect that the accused was fit to stand trial, were qualified, given the physical and cognitive impairment of the accused, and the question may need to be readdressed during any trial that may take place. The submissions on behalf of the accused 1. Learned Counsel on behalf of the accused noted that both experts relied on by the Crown were qualified in their opinions as to the fitness of the accused to stand trial. The accused had been diagnosed with cerebral palsy, epilepsy, ADHD, and had a cognitive impairment which could not be tested. 2. It was submitted to the court that the legal advisers of the accused could not get instructions on the individual charges on the Indictment which concerned seven very specific and separate acts. The accused was unable to nominate his age or date of birth and applying the "Presser Criteria", as outlined by Ms Durkin, the accused had little understanding of the nature of the charges and was unable to provide precise instructions which would allow Counsel to properly cross-examine the complainants. 3. It was also submitted that he had a limited ability to challenge jurors and to understand evidence. There was a real risk of him disengaging from the trial process, and in any event, he would be at an extreme disadvantage in explaining his version of the facts. 4. Counsel submitted that the accused currently has 17 hours of sleep each day, and has a limited attention span, in the order of two hours per day. Determination 1. In R v Presser (1958) ALR 128, Smith J in the Supreme Court of Victoria held that where a court, on its own motion, enters upon an inquiry as to the fitness of the accused to stand his trial, there is no issue joined between the parties in the usual sense. The onus is not on the accused to establish that he is not so fit, and it is proper for the Crown to begin. This was a case where a jury determined whether the accused was fit to stand his trial. 2. The principle was applied in R v Kesavarah (1994) 181 CLR 230; [1994] HCA 41 where the High Court held that it was necessary that the accused understand the nature of the charges and of the proceedings against him, and that he also understand the substantial effect of the evidence and be able to follow the course of the proceedings. It was a material matter that the accused be able to take part in the proceedings to protect his own interest. 3. R v Presser, supra, has been considered, applied and followed in numerous cases since. 4. Here, I am satisfied to the required standard that the accused suffers cerebral palsy, epilepsy, ADHD and depression. He has a cognitive impairment which cannot be accurately assessed, however, on verbal comprehension, he has been placed in the third percentile of the population which means that 97% of the population have cognitive functioning greater than, or equal to the accused. 5. Whilst I was not asked to view the ERISP of the accused for the purpose of this inquiry, from the questioning by the medical professionals it is clear that the accused has only a very general understanding of the nature of the charges brought against him, namely, that he "had sex with two boys". He has little insight into the various forms of sexual misconduct contained in the seven counts on the Indictment. 6. I am further satisfied that the accused has very limited understanding of the nature of court proceedings, including limited understanding of the purpose of the trial, the role of witnesses and the jury, and was not aware of his role in that process, particularly the necessity for him to instruct counsel in respect of each of the allegations being brought against him. 7. I am satisfied that the accused has limited understanding of the concept of challenging persons selected to be on a jury, and although he could be assisted in that process, ultimately it was his responsibility. 8. I am further satisfied that the accused has limited understanding of the evidence that is to be brought against him, and limited ability to instruct his counsel in respect of the seven separate incidents that are alleged against him. That must affect his ability to decide on what defence to offer to those charges. 9. I accept Counsel's submission to the Court that she was unable to obtain proper instructions from the accused as to the seven separate counts on the Indictment. 10. The opinions expressed by both Dr Allnutt and Dr Pulman are qualified as to the accused's fitness to stand his trial and postulate a further inquiry as to that fitness during any trial that might take place. Given the extent of his cognitive impairment, and the various diagnoses, which are set out above and for which he is being treated, it is in my view inevitable that such further inquiry would have to take place and would inevitably lead to him being found unfit to be tried. Whilst it is not a question of preferring one medical opinion over another, I am persuaded that in this case Ms Durkin's opinion should be accepted, and that the accused is not fit to participate in a trial, even though he has a capacity to understand the charges and to plead to them. I am satisfied that the accused does not have sufficient understanding of the legal processes and procedures to comprehend the courtroom process, even in a general sense, and to properly instruct his counsel to prosecute a defence to each of the seven specific charges brought against him. 11. I am further persuaded that being involved in that process would inevitably compromise the accused's capacity to participate in and understand the process to a level required for him to be considered fit, and he would disengage from it. 12. To proceed on the qualified opinions of Dr Allnutt and Dr Pulman, would result in a waste of court resources and those of the office of the Director of Public Prosecutions and the legal representatives of the accused. Inevitably, a further inquiry into his fitness would be required. 13. I therefore find the accused unfit to be tried. 14. I make the following orders: 1. The accused JH is unfit to be tried. 2. I refer JH to the Mental Health Review Tribunal pursuant to s 14(a) of the MHFPA, to determine whether the accused is likely to become fit within 12 months. 3. Bail is to continue. ********** 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: 27 March 2018