DPP v Roy

1. Section 3 of the CPA provides a definition of cognitive impairment, namely that it:

'...includes impairment because of mental illness, intellectual disability, dementia or brain injury'.

1. Section 123 of the CPA prohibits the cross-examination of a complainant in a sexual offence proceeding if the complainant was a child or had a cognitive impairment when the proceeding commenced.

1. The 19 year old complainant is in receipt of a disability support pension and an NDIS package. She attended at special school and suffers from Feingold Syndrome. There is no evidence before me that any of her cognitive deficits are the result of Feingold Syndrome.
2. In his evidence, Dr Brewer stated that he had assessed the complainant as having a full scale IQ of 71. His report opined that she has an IQ range of 68-76 at a 95 per cent level of probability. I note that the formal cognitive criteria for a diagnosis of intellectual disability is an IQ below 70.
3. In his report Dr Brewer found that the complainant has a reading age of a 9.8 year old child. Her verbal working memory fell in the impaired range. Other testing revealed skills in the borderline to low-average range.
4. Dr Brewer further found that while the complainant did not meet the threshold for a mental illness diagnosis of PTSD she did display some of the clinical features associated with this condition. I note she technically meets the threshold for a diagnosis of borderline personality disorder but a formal diagnosis is clinically not compelling given her level of immaturity.
5. The extent of the combined intellectual and mental health symptoms upon the complainant's general functioning is mild to moderate. This Dr Brewer found was supported by the findings from the Adaptive Behavioural Assessment System (ABAS-3) information he obtained from the complainant's mother which reflected functionally impaired capacity in eight of ten key domains.
6. Dr Brewer found that the complainant's intellectual disability is longstanding in nature and mild in impact on her overall function. The extent of her mental health vulnerabilities is mild to moderate.
7. Dr Brewer opined that the complainant remains functionally capable of providing responsive answers to questions, however:

'...her ability to deal with cross-examination is significantly more tenuous. Her impulsive default when overwhelmed presents at least a moderate risk for childlike regressed concept formation and default to vague or non-descript responses'.

1. Dr Brewer made a number of recommendations as to how the complainant should be supported, including by the presence of a support person and modifications to the nature of the questions asked.
2. Before me, Dr Brewer gave evidence that his opinion was based on a combination of her original diagnosis of an intellectual disability, her eligibility for special school and her being on a disability support pension and the NDIS. He assumed she was assessed for both the disability support pension and the NDIS, however he was not provided with assessment reports for either. He also relied on his own testing and impressions from his examination of the complainant.
3. Dr Brewer said that the complainant is highly vulnerable, intellectually disabled and functionally disabled. Her executive function is dependent on others. He rejected the suggestion that the complainant's mother skewed the ABAS-3 questionnaire and said that was but one factor in his consideration.

1. The complainant was not made available for review by Mr Jackson as there is no obligation for her to be so assessed. Consequently Mr Jackson wrote his report after reviewing Dr Brewer's report rather than after assessing the complainant. I accept that this is a limitation beyond Mr Jackson's control.
2. Mr Jackson opined that little weight could be placed on the 2005 report on the complainant when she was aged 5. I agree and consider the report by

Dr Brewer, the response from Mr Jackson, and the supported independent living report to be more reliable given that they were completed recently. 3. Mr Jackson was critical of the use of the full-scale IQ range as opposed to a general abilities index score. 4. Mr Jackson was of the view that the complainant does not satisfy the criteria for having an intellectual disability. He said that:

'In terms of determining whether she has an intellectual disability beyond just her performance in IQ and ABAS-3 it is of note that almost all of her other cognitive performances were in the borderline range, with a strength in her speed and a weakness in her working memory. It is also noted that her predicted IQ was in the borderline range. All of her cognitive performances including her verbal and perceptual intellectual skills are in the borderline range or better apart from her verbal working memory'.

1. Mr Jackson agreed with Dr Brewer that questions would need to be in simple language that a grade 6 primary school student could understand. He found it would also be important to give the complainant one concept to think about at a time and to finish with one concept before moving to the next, and opined that stress could impact the complainant's cognition.
2. In evidence before me Mr Jackson stated that the complainant would have a functional capacity in a court setting but agreed with Dr Brewer's recommendations as to how she should be cross-examined.
3. Mr Jackson was firm in his view that the complainant is not intellectually disabled as her full scale IQ is not in the diagnostic range. She is borderline rather than extremely low in capacity.
4. Mr Jackson agreed that the supported independent living report shows a lower ABAS-3 result than when it was administered by Dr Brewer. He agreed that two points on the IQ scale does not make any real difference to the individual.

1. Mr Barreiro for the accused submits that the complainant may have low intellectual capacity but does not have an intellectual disability. She is on the cusp and I should find that she is not cognitively impaired.
2. It was submitted that Dr Brewer showed bias and that he took the identity of the complainant and his consideration of her feelings into account. I note in his evidence Dr Brewer stated:

'I'm very loath to um, change her diagnosis to technically intellectually not disabled as a result of this assessment when I had no guarantee that she was going to be therapeutically supported to navigate that change in her identity'.

Mr Jackson responded that Dr Brewer was taking into account her potential emotional response as the assessment relies on functional status, not just IQ score. I agree with Mr Jackson's interpretation of Dr Brewer's comment. It was not a matter of Dr Brewer trying not to break the complainant's heart, he was taking into account her functional emotional response.

1. It was further submitted by defence counsel that a special hearing would be a substantial departure from the ordinary process which would deprive the accused of the ability to conduct pre-trial cross-examination.
2. Ms Moran for the prosecution submitted that the complainant is on the cusp in circumstances where IQ can vary for a number of reasons. The complainant is regarded as intellectually disabled by various institutions as she is in receipt of a Centrelink Disability Support Pension and the NDIS.
3. Both experts agreed that there is little functional difference in how the complainant will experience the court process with an IQ of 71 as opposed to one of 69. It was submitted by the prosecution that the definition in s3 of the CPA is an inclusive rather than an exclusive one. It is not simply a case of an IQ of 71 meaning the complainant cannot be cognitively impaired.

1. Clearly the complainant does not meet a diagnostic finding of intellectual impairment, but I do not consider that to be the end of the matter. I consider the use of the word 'includes' in the s3 definition allows me to widen the scope for a finding of intellectual impairment and consider factors such as the supported independent living report, and the capacity of the complainant to cope with court processes.
2. The Supported Independent Living Report identifies a number of areas for which the complainant requires support of moderate intensity. She requires support with washing, toileting, finances, cooking and cleaning for example. Her skills are not age appropriate and she requires ongoing therapy and support. This tends to support a finding of intellectual disability but is of course not definitive.
3. I note that the report repeated the ABAS-3 assessment which indicated that the complainant scored predominantly between extremely low and low. This questionnaire again completed by the complainant's mother indicated lower results than when undertaken by Dr Brewer. The reduced ABAS-3 score is a further cause for concern as to the complainant's functioning.
4. Both experts and indeed both parties accept that when considering whether the complainant has a cognitive impairment she falls into the borderline category. That is, whether she has an intellectual disability or not is a narrow distinction.
5. In discussing its recommendation to improve the criminal justice response for people with a cognitive impairment who are sexually assaulted, the Victorian Law Reform Commission in its Sexual Offences Final Report made the following observations:[2]

'Problems faced by people with a cognitive impairment include the following: they may not tell anyone about sexual abuse because they may not understand what has happened to them is a crime, they may face misconceptions about their credibility and their memory, as a result of which their complaints about sexual assault may not be taken seriously by police, they may have difficulty in explaining what happened to them when they are interviewed by the police, complex courtroom language makes it difficult for them to respond to questioning or to understand legal processes, and they are likely to find cross-examination particularly daunting and difficult'.

1. It is the latter factors identified by the VLRC that are of particular concern to me in this matter. Both experts agreed that modified questioning should be employed by counsel when leading evidence and cross-examining the complainant. Clearly this supports a finding of intellectual disability as the appropriate mechanism by which to achieve this modified questioning is through the use of an intermediary at a ground rules hearing and a special hearing.

1. I am satisfied that the complainant has a cognitive impairment as per s3 of the CPA based on a finding of intellectual disability. I accept that her full scale IQ is 71, marginally higher than the diagnostic intellectual disability cutoff. However when taken in combination with the supported independent living report and the evidence as to her capacity to cope with court processes I am persuaded that she meets the criteria for intellectual impairment and should be afforded a ground rules hearing followed by a special hearing.
2. The application for a s198A hearing is therefore refused.

[2] Victorian Law Reform Commission, Sexual Offences (Final Report, July 2004) 322-3.