Director-General, Department of Environment, Climate Change and Water v Source & Resources Pty Limited; Alexander

Land and Environment Court (NSW)|2011-05-18|Before: Pepper J, Mr P, Humphreys J

Introduction and Background 1This judgment sets out the written reasons for a finding made by me on 18 May 2011, that Mr Kelvin Alexander is unfit to stand trial. 2The background to the hearing into the fitness of Mr Alexander to stand trial in respect of the alleged commission of offences contrary to s 12 of the Native Vegetation Act 2003 ("the NVA") and s 118D(1) of the National Parks and Wildlife Act 1974 ("the NPWA") is set out (at [1]-[55]) in my earlier judgment of Director-General, Department of Environment, Climate Change and Water v Source & Resources Pty Limited; Alexander; Gordon Plath of the Department of Environment, Climate Change and Water v Source & Resources Pty Limited; Alexander [2010] NSWLEC 235 ("the first judgment"). 3In short, during the course of the hearing into Mr Alexander's guilt, it became apparent to the Court (Mr Alexander was unrepresented at that stage) that Mr Alexander did not appear to comprehend the gravity or substance of the offences with which he had been charged. Pro bono counsel was procured to represent Mr Alexander and an issue was raised by this counsel as to Mr Alexander's fitness to stand trial for the offences charged.

Applicable Principals at Common Law 4In the first judgment I held that the Mental Health (Forensic Provisions) Act 1990 ("the mental health act") did not apply to proceedings conducted in the Land and Environment Court, and consequently, any determination of Mr Alexander's unfitness to stand trial had to be determined by application of common law principals (at [56]-[67]). 5In the first judgment I set out the applicable principals at common law to determine whether Mr Alexander was fit to stand trial (at [69]-[79]). I repeat them here for the sake of convenience and completeness: 69 The concept of a defendant person's fitness to stand trial derives from the common law (John Frith (1790) 22 St Tr 307 and R v Pritchard (1836) 7 C&P 303). In R v Dashwood (1943) 1 KB 1 at 4 Humphreys J stated: It is a cardinal principle of our law that no man can be tried for a crime unless he is in a mental condition to defend himself. 70 In Eastman v The Queen (2000) 203 CLR 1 the High Court stated (at 64]): 64 Traditionally, an accused person has not been put on trial unless fit to plead because of ''the humanity of the law of England falling into that which common humanity, without any written law would suggest, has prescribed, that no man shall be called upon to make his defence at a time when his mind is in that situation as not to appear capable of so doing''. That statement may indicate a positive and independent right on the part of an accused not to be tried unless fit to plead. It is unnecessary to decide whether that is so. It is sufficient to approach the present matter on the basis that the common law guarantees an accused person a fair trial according to law and that one aspect of that guarantee is that a criminal trial cannot proceed unless the accused is fit to plead. 71 A detailed exposition of the origin and development of the common law rules concerning the fitness of a defendant to stand trial was given by Wood CJ at CL in R v Mailes (2001) 53 NSWLR 251 (at [112]-[144]). 72 The capacity in question is not simply limited to the mental health of the accused. Rather, the concept encompasses a broader consideration of the defendant's capacity for comprehension of the proceedings (Eastman at [22] and R v Sexton (2000) 116 A Crim R 173 at 184). 73 Fitness to stand trial is an issue that must be resolved once a party (or the court) raises "a real or substantial" (R v Presser [1958] VR 45 at 46) question for consideration. Once this occurs, the trial must be halted unless and until a determination is made that the defendant is fit to stand (Eastman at [86]). 74 In the seminal decision of Presser Smith J discussed the circumstances in which a defendant is unfit to be tried without unfairness or injustice to him or her (at 48): He 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 it 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 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 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. 75 In summary, the minimum standards which Smith J stated were necessary for trying a defendant without "unfairness or injustice" are that the defendant must (Kesavarajah v The Queen (1994) 181 CLR 230 at 245): (1) be able to understand the nature of the charge; (2) be able to plead to the charge; (3) be able to understand generally the nature of the proceedings, albeit not all the court processes, namely, that it is an inquiry into whether the defendant committed the offence charged; (4) be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, although an understanding of the purpose of court formalities is not necessary; (5) understand the substantial effect of any evidence given in support of the prosecution; and (6) be capable of making a defence or answer to the charge. 76 This passage is often referred to as the ' Presser test'. Its endorsement and application was surveyed by the New South Wales Court of Criminal Appeal in Clarkson v R (2007) 209 FCR 387 (at [130]-[142] and see also Mailes at [145]-[181]), albeit largely in its application to the Mental Health (Forensic Provisions) Act and its predecessor, the Mental Health (Criminal Procedure) Act 1990. At [142] the Court of Criminal Appeal stated: 142 In R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7, the Court (Mason P, Wood CJ at CL and Sully J) held at [279] that the question of fitness to be tried was to be determined by application of the Presser test: "The test for determining fitness to stand trial is whether the accused has a sufficient mental state, and intellect, to comprehend the course of the proceedings involved in the trial, so as to follow those proceedings, and so as to make a proper defence. The factors to be taken account have been accepted as being those developed in R v Presser (supra), an authority which has been consistently followed in this State and elsewhere: see for example R v Mailes, R v Zhang [2000] NSWCCA 344, R v Tier (2001) 121 A Crim R 509, and Kesavarajah v The Queen (1994) 181 CLR 230." 77 A determination of whether or not a defendant is fit for trial is not the culmination of a balancing process, although it is accepted that depending on the basis of the alleged unfitness in some cases adjustments can be made to overcome any unfairness (Mantell v Molyneux (2006) 68 NSWLR 46 at [33] and [35]): 33 It seems to me, with respect, that the learned magistrate erred in considering that a balancing process was involved in determining whether it would be fair to conduct a trial in the circumstances. If a defendant is not fit to stand trial in the R v Presser sense, the trial is by virtue of that very fact necessarily unfair and the public interest in the trial of the person charged with criminal offences must give way. Some elements of unfairness may be able to be overcome by, for example, requiring the cross-examiner not to put leading questions to the appellant, but such an order strikes me as involving an inappropriate interference with the conduct of the trial by the prosecution. It is difficult to think of any other orders that might compensate for the fundamental limits in understanding and ability to communicate, especially an ability to communicate in the court environment, which were identified by Ms Pikett and Mr Hudman ... 35 In my view, the question of fitness for trial is fundamental. In some cases, adjustments can be made to overcome the defendant's unfitness, as by providing a deaf person with a signing interpreter. But this is not to make the trial of a person who is unfit for trial a fair one: it is to remove the unfairness. 78 Finally, in respect of memory loss, the following passage from Mailes is instructive (at [172]): 172 In R v Drummond (Court of Criminal Appeal, 27 May 1994, unreported), the issue arose in a case where the accused claimed that he had amnesia and could not recall committing the offence. It was held applying R v Podola and Russell v His Majesty's Advocate , and following R v Dennison (Court of Criminal Appeal, 3 March 1988, unreported), that a condition of amnesia resulting from brain damage of a diffuse kind, does not operate to bar the trial of an accused, and that as a consequence the direction by the trial Judge to the jury to find the accused fit was correct. Gleeson CJ observed, (at 9-10). "As had been pointed out by Grove J, the decision in R v Dennison is supported by a line of English and Scottish authorities to the effect that amnesia does not constitute unfitness to plead to a criminal charge. The common sense behind this conclusion is, I consider, fairly apparent. There may be any number of reasons why a person accused of a crime may be unable to recollect the events of the occasion on which the alleged crime occurred. Amnesia may be one such reason; age, other forms of infirmity, or simply distance in time between the alleged events and the trial, might explain the inability to recollect. The fact that an accused person cannot, for one reason or another, recollect the events of the occasion of the alleged crime does not mean that the accused is, within the words of R v Presser ... incapable of letting Counsel know what his version of the facts is. The accused person who says to his counsel 'I can't remember what happened on that day' is not thereby unfit to plead." 79 Notwithstanding that Mr Alexander's loss of memory was an aspect of his possible unfitness to stand trial, having regard to the principles established in the authorities referred to above, it appeared that the concerns articulated by Mr McEwen SC readily gave rise to a real or substantial question as to Mr Alexander's fitness to stand trial. 6To the above principles I would add the following: (a) first, I do not read Presser or any of the authorities that have subsequently endorsed and applied that decision to mean that the check list of issues set out in that decision must all be answered in the negative to find the accused unfit to be tried; (b) second, having said this, it is not sufficient that the accused merely has a reduced capacity to meet the Presser test that falls short of denying to the accused the ability to understand and follow the proceedings in each of the necessary aspects (R v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284); (c) third, the fact that an accused may have done better in a trial had he or she possessed a more attractive personality; a greater level of intelligence or education; improved communication skills; a deeper appreciation of the factual and legal issues; a better appreciation of the trial process; or had suitable medical treatment or medication had been provided, does not necessarily render an accused unfit for trial (Rivkin at [298]-[300]); (d) fourth, a temporary condition can, if present at the time of trial, render an accused unfit to stand trial (Rivkin at [285] and [296]); (e) fifth, the cause of any unfitness is not limited to mental illness but can include a physical illness, a developmental disability or a combination of all three (Rivkin at [284] and R v Mailes [2001] NSWCCA 155; (2001) 53 NSWLR 251); and (f) sixth, while the position at common law regarding the onus or burden of proof in any determination of unfitness to stand trial is not entirely clear, in my opinion, given that the issue of fitness in the present case has been raised by Mr Alexander, the accused in these proceedings, the onus lies on him to demonstrate that he is unfit on the balance of probabilities (R v Podola [1960] 1 QB 325; (1959) 43 Cr App Rep 220 and Rivkin at [301]). Having said this, I acknowledge that there is authority to indicate that where the Crown raises the issue of fitness to stand trial, the onus of proof lies on it to prove unfitness beyond a reasonable doubt (R v Donovan [1990] WAR 112; (1989) 39 A Crim R 150 at 154-155).

Medical Evidence as to Unfitness 7Three reports of Dr Michael Davis were relied upon by Mr Alexander (9 December 2010, 22 December 2010 and 20 January 2011). In addition, Mr Alexander relied on the test results of cognitive testing held on 7 December 2010 by the Bega Valley Aged Care Assessment Team, as reported in the second report of Dr Davis dated 22 December 2010, together with a CT brain scan undertaken in February 2010. 8Dr Davis is a consultant geriatrician. In his first report dated 9 December 2010, Dr Davis noted that there were problems with Mr Alexander's short-term memory but he otherwise concluded that there were "no major concerns". 9However, this position changed when Dr Davis was asked to give a formal review of Mr Alexander. In his second report dated 22 December 2010, and following the results of cognitive testing by the Bega Valley Aged Care Assessment Team on 7 December 2010, Dr Davis concluded that Mr Alexander had significant cognitive impairment, which would fall into the clinical category of Mild Cognitive Impairment or early dementia. He noted that a CT brain scan completed in February 2010 reported cerebral atrophy and ischaemic changes in the deep white matter of the brain. This was not specific, but was consistent with the diagnosis of early dementia due to either Alzheimer's disease or cerebral vascular disease. Based on his observations and the diagnostic material before him, Dr Davis concluded that "the degree of cognitive impairment (particularly in relation to short-term memory) documented on the basic cognitive testing available to me, would indicate that Mr Alexander is unlikely to be able to take part in complex legal proceedings". 10Dr Davis provided a further report on 20 January 2011. In this report, Dr Davis' diagnosis was one of dementia rather than Mild Cognitive Impairment. Dr Davis stated that it was apparent that Mr Alexander's problems involved "more than simply poor memory" and that there were deficits in other cognitive areas such as organisation skills, analytical skills and judgment. Accordingly, Dr Davis opined that: Mr Alexander may be able to understand the general nature of the charge against him. I consider that he would have difficulty understanding the general nature of proceedings in court both because of difficulty in remembering information presented and appreciating its significance. I think it is unlikely that he would be able to follow the course of the proceedings so as to understand what is going on in court in a general sense. I do not think he could understand and retain the substantial effect of evidence given in support of the prosecution in order to be capable of making a defence or answering the charge. 11Dr Davis therefore suggested that Mr Alexander undergo a neurophysiological assessment. 12As a consequence, on 13 May 2011, the prosecutor filed a report of Dr Susan Pulman, dated 14 April 2011. Dr Pulman is a clinical and forensic neuropsychologist. Dr Pulman reported the results of a neuropsychological assessment conducted by her. While Dr Pulman considered Mr Alexander's immediate attention and concentration were intact, she concluded that his ability to acquire and retain novel verbal information was at a level below that which could be predicted for his IQ and that his performance on recollection of structured verbal information, as well as tasks requiring him to assess unstructured verbal information, was poor. Mr Alexander's memory testing also indicated marked impairment. His non-verbal conceptional reasoning was impoverished and his verbal fluency was poor. 13In summary, Dr Pulman found Mr Alexander's capacity to regulate and control his responses in accordance with his surroundings at any given time to be limited. The consequence of this was that the cognitive impairment of Mr Alexander was not confined to memory, rather it extended to his executive functioning. The impairment was, in Dr Pulman's view, beyond that which was attributable to age. According to Dr Pulman, the organic changes revealed in the CT brain scan demonstrated broad cognitive impairment of which memory was a component. In short, the result of the clinical neurophysiological assessment supported, in her view, the conclusion of Dr Davis of a diagnosis of dementia. 14Dr Pulman considered that Mr Alexander's cognitive deficits impacted adversely on his ability to participate fairly in a trial. It was Dr Pulman's opinion that it was highly unlikely that Mr Alexander would be able to understand the nature of the proceedings, or be able to follow what was going on in Court in any general sense. She gave several illustrations: (a) when Mr Alexander was asked to state the nature of the offence for which he had been charged he was unable to do so, was easily distracted and provided a long and detailed description of the nature of his work without providing an answer to the question; (b) when asked about the role of his solicitor he was unable to provide a coherent response. He became distracted and could not recall the name of his solicitor; (c) when asked about the evidence and the substantial effect of that evidence in relation to the offences with which he had been charged, Mr Alexander was unable to explain what the evidence was or understand how it might impact on his defence; and (d) when asked how he intended to make his defence or to instruct counsel in relation to how to proceed in the matter, Mr Alexander did not appear to understand or appreciate the question. 15Mr Alexander also relied on a letter from Dr Jeffrey Cummins, a consulting clinical and forensic psychologist, dated 31 January 2011. Dr Cummins had never formally assessed or examined Mr Alexander. Rather he provided the letter in his capacity as an acquaintance of Mr Alexander. He acknowledged that his contact with Mr Alexander had been limited and that he usually only saw him at social functions organised through Eden Realty, where Mrs Marika Alexander was employed. In his professional opinion, Dr Cummins had noticed a steady decline in Mr Alexander's short-term memory and executive functioning. This had become more noticeable over the past two years. Based on his casual but clinically informed interactions with Mr Alexander, it was Dr Cummins' opinion that he had a cognitive impairment that would fall into the clinical category of Mild Cognitive Impairment or early dementia. 16Finally, Mr Alexander relied on an affidavit of Mr Anthony Hagan sworn 14 December 2010. Mr Hagan was formally the solicitor for Mr Alexander and his company, Source & Resources Pty Limited ("Source and Resources"). He commenced acting for both entities in March 2008. Between March 2008 and October 2010 Mr Hagan estimated that he met with Mr Alexander on at least a weekly basis and sometimes several times a week. As a consequence, he had the opportunity to observe Mr Alexander. During these conferences he noticed that Mr Alexander appeared to have significant difficulty with his short-term memory. 17The prosecution did not seek to challenge any of the medical or lay evidence put before the Court on the question of Mr Alexander's fitness to stand trial. 18Finally, it should be noted that the Court also had the benefit of its own first hand observations of Mr Alexander's capacity to understand and participate in the proceedings, as occasioned by his conduct on the first day of the trial. It was also cognisant of the concerns expressed by Mr Alexander's counsel, Mr Peter McEwen SC, a barrister of considerable expertise and experience, as to Mr Alexander's possible unfitness (see the first judgment at [50]-[52]).

Mr Alexander is Unfit to Stand Trial 19Having regard to the opinions expressed by Dr Davis and Dr Pulman, the Court finds that Mr Alexander is suffering from dementia that has resulted in significant cognitive impairment not only in relation to his short-term memory, but also with respect to his executive functioning, including areas such as organisational and analytical skills, together with a decline in verbal fluency and intellectual function. 20Applying the Presser test it is clear to me that the minimum standards that Smith J stated in Presser were necessary for trying an accused without unfairness or injustice cannot be met in these proceedings. 21True it is that Mr Alexander, at a very high level of generality, is aware of the nature of the charges against him, namely, the unauthorised clearing of native vegetation and causing damage to the habitat of a threatened species, and that he has pleaded to those charges. But I am not confident that Mr Alexander is able to properly understand the content of the charges brought against him or is able to follow the course of their prosecution. I do not accept that Mr Alexander understands the effect, let alone the substance, of any of the evidence relied upon by the prosecution, and I do not accept that, by reason of the cognitive deficits described above, he is able to make a defence or answer the charges. This is because, as the evidence demonstrates, he is unable to remember, marshal or organise the information necessary to understand and meet the facts and circumstances that serve as the basis of the offences relied upon by the prosecution, or to provide instructions to his counsel as to what his version of the facts purportedly giving rise to the commission of the offences is. 22As the medical evidence demonstrates, together with what was observed by the Court and his counsel, Mr Alexander has significant difficulty in both retaining and comprehending the events giving rise to the prosecution. In these circumstances I accept that his legal representative is unable to ascertain whether or not Mr Alexander has a defence to the proceedings, let alone how it is be presented. I also doubt that Mr Alexander would be able to follow the proceedings over the course of several days in order to provide instructions during the course of the trial. 23While memory loss does not of itself render a person unfit to stand trial, the medical evidence demonstrates, in my view, that the disability from which Mr Alexander suffers extends beyond mere amnesia. Mr Alexander's dementia renders him incapable of organising his thoughts rationally, his judgment making is impaired and his thought processes are disorganised. 24Furthermore, it appears that the dementia from which Mr Alexander suffers is progressive. That is to say, his present condition will not ameliorate overtime, but is more likely to deteriorate. Thus it is not the case that with a temporary stay and suitable medical intervention, the prosecution can resume in the future. 25Similarly, the unfairness that would result in Mr Alexander standing trial cannot, in my opinion, be mitigated by adjustments made to the conduct of the hearing. I cannot conceive of any orders that could be crafted that could compensate for Mr Alexander's condition during the course of the proceedings. Put another way, I do not believe that it is possible to remove the unfairness by curial means. 26I therefore find that on the balance of probabilities Mr Alexander is unfit to stand trial.

Consequences of a Finding of Unfitness to Stand Trial 27The conclusion that Mr Alexander is unfit to stand trial gives rise to a question as to what are the appropriate orders at common law consequence upon this finding. In R v WRC [2003] NSWCCA 394; (2003) 59 NSWLR 273 Spigelman CJ emphasised that a permanent stay of proceedings, even if pursuant to a finding of unfitness, was a wholly exceptional intervention into the processes of criminal law (at [55]). In that case, the Court of Criminal Appeal overturned a decision of Woods DCJ granting a permanent stay of proceedings on the grounds of abuse of process pursuant to a finding that the respondent was unfit to be tried. 28While that case was determined within the rubric of the Mental Health (Criminal Procedure) Act 1990 where Pt 2 of that Act indicates a legislative intention that the issue of fitness to be tried should be determined by trial by jury, the exceptional nature of a permanent stay of criminal proceedings is nevertheless aposit to the present case. This is because it was Mr Alexander's submission that to order anything other than a permanent stay of the prosecution against him would be an abuse of process given the irreversible and progressive nature of his infirmity. 29Ultimately I do not need to resolve this issue because the prosecution indicated that consequent upon the finding of unfitness it would withdraw both charges against Mr Alexander. By reason of the two year limitation period contained in s 42(3) of the NVA and s 190(1)(a) of the NPWA (both of which state that proceedings for an offence under each Act must be commenced within two years after the date on which the offence is alleged to have been committed) the withdrawal of the charges will have the practical effect that the possibility is not left open that Mr Alexander can be charged with the offences the subject of these proceedings in the future.

Impact of Finding of Unfitness on Source and Resources 30Left undetermined by this hearing is the effect of the finding of unfitness on the charges against Source and Resources. The Court was informed on 28 September 2010 that Mrs Alexander had ceased to be a director of the company. This leaves only Mr Alexander, against whom the finding of unfitness has now been made, as the sole corporate officer of the company. The parties accept that at all material times Mr Alexander was, to all intents and purposes, the will and mind of the company. An interesting issue, therefore, arises as to the utility and fairness of proceeding with the prosecution against Source and Resources in these circumstances. 31It is the prosecution's present intention to continue with the proceedings against the company, although the Court was told that further instructions are currently been sought in this regard. 32In these circumstances, it is therefore convenient and appropriate that all four matters be stood over for two weeks to permit the parties to bring in short minutes of order disposing of the charges against Mr Alexander and, if necessary, setting down a further timetable for the prosecution of the charges against Source and Resources.

Orders 33Consistent with the reasons given above, the orders of the Court are: (1) the Court finds that Mr Alexander is unfit to stand trial in matters no 5006 and 5009 of 2010; (2) the parties are to bring in short minutes of order giving effect to the prosecution's stated intention to withdraw the charges in these two sets of proceedings; (3) in relation to matters no 5005 and 5008 of 2010 (the charges against Source and Resources) the parties are to bring in short minutes of order either disposing of these two sets of proceedings, or providing for the further preparation of these matters; (4) all four proceedings are stood over to 3 June 2011 at 4.15pm to permit the parties to give effect to orders 2 and 3 above; and (5) the exhibits tendered during the course of the hearing into Mr Alexander's fitness to stand trial are to be returned.

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: 23 May 2011

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (8 paragraphs)

Parties

Cases Cited (12)

Cited By (3)