Greig v Dziubinski [2013] ACTSC 8

2. Mr Greig was summonsed to appear in the Magistrates Court on 29 October 2010, which he did. He was granted bail and, on 5 January 2011, a plea of guilty was entered, but the Court was advised that there would be a dispute as to the facts.

3. After a number of adjournments, it apparently became clear that there was an issue as to the fitness of Mr Greig to plead and, on 8 June 2011, Mr Greig's lawyers advised the Court of this. Reports were sought from various medical experts.

4. A hearing was held under s 315A of the Crimes Act 1900 (ACT) on 6 March 2012 and, on 21 August 2012, the learned Chief Magistrate found that Mr Greig was fit to plead.

5. An appeal has been taken from that decision by Mr Greig.

6. Appeals to this Court from the Magistrates Court in criminal matters are dealt with in pt 3.10 of the Magistrates Court Act 1930 (ACT), whereby s 207 gives this Court appellate jurisdiction to certain matters "and to no others".

7. One of the groups of matters in which such jurisdiction is given are appeals to which div 3.10.2 (appeals in criminal matters) applies. Section 208, in div 3.10.2, lists the appeals to which the Division applies and this includes s 208(1)(a), namely,

an appeal by any of the following from a decision of the Magistrates Court under the Crimes Act, section 315A(2) or (3) (Investigation into fitness to plead) or section 315D(7) (Person found temporarily unfit to plead):

(i) the person whose fitness to plead was decided;

(ii) anyone who appeared at the proceeding in which the decision was made;

(iii) anyone else with the leave of the court.

8. I have been unable to find any authority as to the approach that should be taken to such an appeal. That is hardly surprising, since it was only from 24 February 2005 that the Magistrates Court was given power to determine the fitness of a person to plead.

9. The balance of div 3.10.2 applies to such appeals, namely, the approach to appeals set out in s 214 (in particular to the evidence before the Magistrates Court and the admission of further evidence), the stay of the orders or decision of the Magistrates Court pending appeal in s 216 and the orders that may be made by the Supreme Court in s 218.

10. It seems to me that the approach generally to such appeals, as outlined in cases such as Baker v Thorpe (1985) 62 ACTR 1; Campbell v Fortey (1987) 85 FLR 462 and Lukatela v Birch [2008] ACTSC 99; (2008) 223 FLR 1, should be followed.

11. The appeal is by way of rehearing. I described such a hearing in Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 at [78] as follows:

Appeal by way of rehearing is also one where the appeal court must determine whether the decision of the body from which the appeal is taken is wrong, by that body falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong. Ordinarily, however, facts found based on the assessment of witnesses will not lightly be overturned. The appeal court usually has power to receive further evidence, though this is ordinarily subject to some restrictions. The appeal court may also draw inferences itself from primary facts found by the body from which the appeal is taken. The decision, however, is not restricted to making the decision that should have been made by the body from which the appeal is taken but in determining it the appeal court must have regard to the circumstances which exist at the time of the appeal and by making its own decision on these circumstances.

12. When further evidence is admitted under s 214 of the Magistrates Court Act, the position is a little different, as outlined in Grooms v Toohey (2012) 7 ACTLR 1 at 12; [52] where, though by reference to a sentence appeal, the principles were described as follows:

It seems to me that the position is as follows. The appellate court must decide whether, under s 214(3) or s 214(4) of the Magistrates Court Act, the further evidence is to be admitted. If it is, the court must then consider whether a different sentence should, in the light of this further evidence, have been imposed. If it comes to the view that it should have been, then the sentencing discretion is enlivened and the sentencing proceedings must be re-opened. On those proceedings, still further evidence may then be admitted, though often it is not. Some or all of that additional evidence may not have been admissible under s 214(3) or s 214(4), but should have, of course, to be admissible in sentencing proceedings. If, having considered all this evidence and, of course, the evidence before the magistrate, the appellate court considers in the exercise of its independent discretion that no other sentence than that of the Magistrates Court should be imposed, the appeal should be dismissed. If that is not the case, then the appellate court should either remit the proceedings back to the Magistrates Court to be dealt with according to law or should sentence the appellant.

13. On a date that is unclear, but appears from the bench sheets in the Magistrates Court to have been 8 June 2011, Mr Greig's lawyers indicated that Dr Sue Richardson, specialist in geriatric medicine, had written to Mr Greig's general practitioner advising him of her diagnosis of being "on the border ... of late stage mild cognitive impairment .../early Alzheimer's type dementia". The Court ordered a forensic mental health report as to Mr Greig's fitness to plead and that was provided by

Dr Graham George, Consultant Psychiatrist, on 1 July 2011.

14. The investigation was then set for hearing on 6 March 2012. Dr Richardson's report was tendered without objection. That report indicated that, in Dr Richardson's opinion, there was true cognitive impairment and the opinion stated above (at [13]), was expressed. Dr Richardson considered that Mr Greig could still drive a motor vehicle but that "he does need already to take precautions such as stopping frequently on longer drives and ensuring that he is not driving later in the day".

15. The prosecution initially opposed receipt of Dr George's report but, after he had been cross-examined at some length, that objection was withdrawn and the report admitted. Although the report is one ordered by the Court, it must still be admissible before it can be relied on by the Court and the usual rules, including those relating to expert's reports, apply.

16. At the end of the proceedings, the learned Chief Magistrate expressed concern that the state of the evidence was incomplete and her Honour was "uncomfortable" at proceeding on the findings of Dr George's report. No reference seems to have been made to the report of Dr Richardson in this context alone. Consideration was then given to whether a neuropsychological report could be prepared. After inquiring, it appeared likely that it could be prepared and her Honour ordered it to be prepared and submitted to the Court.

17. A report dated 2 July 2012 was prepared by Dr Linda Thomas, a neuropsychologist, and tendered when the proceedings resumed on 21 August 2012. In the meantime, comprehensive written submissions had been prepared by both prosecution and defence and were filed and read by her Honour.

18. It is not necessary to set out here a summary of the evidence because of the course the appeal took, as noted below (at [23]).

19. After reference to the reports of Dr Richardson, Dr George and Dr Thomas, her Honour was concerned that Dr George "expressed some concern about the findings that he was able to make" and that the report of Dr Thomas, though finding that Mr Greig was unfit to plead, did not address specifically the criteria set out in s 311 of the Crimes Act. Her Honour was also concerned that Dr George relied on Mr Greig's "short-term memory deficit" and that s 311(2) provided that a person is not unfit to plead "only because the person is suffering from memory loss".

20. Her Honour noted that fitness to plead does not require a defendant to have perfect comprehension of the whole proceedings, but only an understanding of the "true nature of the proceedings" and that they are "a determination of his or her guilt or innocence and to generally follow those proceedings and instruct legal representatives in relation to relevant issues".

21. Her Honour concluded that, on the material before her, Mr Greig could meet these standards and that he was fit to plead.

22. On 29 August 2012, an appeal was commenced against that decision of the learned Chief Magistrate. The ground of the appeal was that her Honour had erred in the consideration of the criteria in s 311 of the Crimes Act.

23. Further evidence was sought to be adduced in the form of an amended report by

Dr Thomas, dated 19 October 2012, in which she addressed the statutory criteria explicitly. As required by r 5193 of the Court Procedures Rules 2006 (ACT), an application was made for the admission of this evidence, supported by an affidavit to which the amended report was annexed.

24. The respondent did not object to the admission of the evidence. While this may have amounted to consent for the purposes of s 214(3)(b) of the Magistrates Court Act,

I admitted it in any event under s 214(3)(a) as it seemed to me clearly to be in the interests of justice to do so.

25. I had before me and read carefully the evidence of Dr George before the learned Chief Magistrate; I read Dr Thomas' amended report and Dr Richardson's report. Dr Thomas also gave evidence and was extensively cross-examined.

26. As a result of this further evidence, I was really required to consider whether, on the whole of the evidence now available to me, Mr Greig was unfit to plead.

27. Relevant parts of Dr Richardson's report have been set out above (at [12] and [14]) and it is not necessary to repeat them.

28. The report referred to a cerebral MRI report that had been prepared, apparently by

the cerebral volume [of Mr Greig's brain] is normal for age with there being mild prominence of the ventricular system and CFS spaces consistent with mild generalised volume lost. There was evidence of a possible previous hypertensive micro bleed within the right frontal deep while matter/corona radiata but a lesion of this type is not necessarily associates with dementia. However the reduction in cerebral volume is consistent with the diagnosis of Alzheimer's type dementia.

29. In Dr George's opinion, the elements identified by Dr Kenning (above at [28]) were indicative of Alzheimer's disease.

30. Dr George's report of 1 July 2011 followed his examination of Mr Greig on that day. It noted that Mr Greig was on time for the interview, was neatly and appropriately dressed and was shaven. He was somewhat hesitant in manner but maintained reasonable eye contact and showed no abnormal movements, mannerisms or noted tics. His effect was responsive but "somewhat fatuous". He did not appear pervasively depressed.

31. The report stated that Mr Greig's thought form was normal but that he exhibited some degree of poverty of thought and speech and did not enlarge on answers to any great degree. He struggled at times to answer questions, especially as to historical data. At times he also appeared mildly perplexed or confused. He did not appear to be responding to perceptual stimuli or exhibit psychotic phenomena.

32. The report noted that the Mini Mental State Examination (MMSE) showed him to be oriented in time, place and person. His short-term memory was limited; his long-term memory was variable; his general knowledge was wanting. His calculating ability appeared reasonable, his attention and concentration appeared fair to reasonable but he struggled with abstract thought ability.

33. The report set out a detailed history which it is not necessary to set out.

34. Dr George set out the statutory criteria and assessed Mr Greig as being fit in respect of understanding the nature of the charge, ability to enter a plea and ability to understand the effect of the evidence, having moderate to incomplete fitness in respect of the ability to exercise a right to challenge jurors or a jury and understanding that the proceedings are an inquiry about whether he committed the offence and being unfit in respect of his ability to follow the course of the proceedings and to instruct his lawyers. Dr George opined that he would not become fit within 12 months.

35. Dr George gave extensive oral evidence before the learned Chief Magistrate which I read and to which I had regard. It is not necessary to summarise all of it but the following is relevant.

36. Dr George concluded from his MMSE that Mr Greig had varying attention and concentration, demonstrated a short-term memory deficit and exhibited concrete thinking, as opposed to abstract thinking. He concluded that the diagnosis of Dr Richardson that Mr Greig had early Alzheimer's disease was correct. He also concluded that Mr Greig would have difficulty with cognitive flexibility, shifting from one set of ideas to another or coalescing ideas or drawing conclusions or exercising judgement. He considered that a neuropsychologist would be able more clearly to demonstrate those findings.

37. He noted in cross-examination that a number of factors, such as prior alcohol or drug consumption or illness, can affect the results of a MMSE. He said that stress can also affect the results but that examinees tend to relax as time passes. He also accepted that stress can affect short-term memory - but it can sharpen it as well as reduce it. He noted that Alzheimer's disease can also lead to greater levels of anxiety which can interfere with social functioning. He assessed Mr Greig as not being stressed when he examined him. He did not observe any catastrophic reaction in Mr Greig.

38. He also conducted a structured interview of the kind he regularly conducted for fitness to plead examinations. It consisted of a psychiatric clinical assessment which included asking Mr Greig questions and making observations of his demeanour and speech patterns. There was, therefore, a reliance on self-report but mediated by clinical experience and observation and professional knowledge.

39. He said that he follows a format for every such examination, unlike a clinical examination for treatment which is a looser process. The structure, he said, is so as not to miss a diagnosis. He described the process in some detail. I do not need to reproduce it here.

40. Nevertheless, he said a number of times that a neuropsychological assessment would more adequately identify the cognitive deficits that Mr Greig suffered. Such assessments would use tests that have been tested for validity.

41. Dr George made no inquiry, however, as to whether Mr Greig was still working, how he supports himself, the contact he had, if any, with friends, whether he owns his own home, his financial circumstances or whether he is assisted in his day-to-day life.

42. Some of these, he considered would not necessarily be relevant. For example, his long-term memory, usually unaffected by Alzheimer's disease, would allow him to work at his long-time occupation as a piano tuner. The same would, he said, generally apply to his golf-playing which, it was suggested (though there was no evidence of this), he was still doing regularly. He was, nevertheless, a little concerned that Mr Greig was still driving a car, considering that he was "on the cusp of having his [licence] removed". He noted that for people suffering Alzheimer's disease, the long-term memory is usually left intact.

43. He felt that Mr Greig would have difficulty following the court proceedings. This was due to his short-term memory deficit. Mr Greig said to him that he was lost in the proceedings and had to refer to his solicitor. He accepted that many people struggle with court proceedings, but took this into account when coming to his conclusion. He did not, however, take into account whether the facts of the case were simple or complex.

44. As to instructing his solicitor, he also felt that Mr Greig was unfit to plead. This was because he would not be able to integrate the relevant information. While the events were historical, the allegations in the statement of facts amounted to new information which needed to be integrated with his long-term memory and that was where there would be difficulty. He felt it would be very difficult to overcome with assistance from his solicitor. It would not overcome the short-term memory deficit. He considered Mr Greig did not demonstrate a total understanding of his position with respect to someone representing him.

45. Dr George noted there is no cure for Alzheimer's disease. It is a progressive disease that will worsen over time, though the rate cannot be predicted. Certain drugs can slow but not stop the rate of its progress. It does not, of itself, render a person unfit to plead as, indeed, he accepted, a mild cognitive impairment would not of itself render a person unfit to plead. He was clear, however, that Mr Greig would not improve but only get worse.

46. The learned Chief Magistrate questioned Dr George about the diagnosis of Alzheimer's disease. He said that his examination was, in part, to exclude other causes, such as multiple sclerosis, vitamin deficiencies and other conditions that have to be excluded before a diagnosis of Alzheimer's disease can be made. Here, there was a diagnosis by a relevant specialist, a geriatrician, supported by a radiologist. His assessment was a confirmation, not a full diagnosis.

47. As far as the assessment of fitness to plead was concerned, however, he said:

As far as an assessment like this is concerned, I remain quite uncomfortable, because of the fact that Mr Greig's at the early, when I assessed him was at the early stages of Alzheimer's disease. And he presented quite well. On a one-to-one basis, social skills are good, his probably [sic] activities of daily living are reasonable, but he does have this short-term memory deficit. And I found I just could not ignore that in making my assessment.

48. It was this expression of discomfort that was mentioned and relied on in the ultimate ruling of the learned Chief Magistrate.

49. Dr Thomas examined Mr Greig on 19 June 2012. She interviewed him and had him complete a number of standardised tests of cognitive functions. She prepared a report dated 2 July 2012, along with an updated report dated 19 October 2012 explicitly addressing the statutory criteria in s 311 of the Crimes Act (as noted above at [17], [19] and [23]). I read both reports.

50. She reported that Mr Greig attended the interview on his own, having driven to the destination. He was on time and co-operative. He had no difficulty in finding the rooms of Dr Thomas. His behaviour was engaging but he was, she reported, "somewhat bland and fatuous in his presentation" which, she further reported, was "consistent with the personality change seen in dementia". His speech was generally fluent, but on occasion he "struggled" to find the right word or used "similar sounding but incorrect meaning words". He had difficulty with names.

51. She conducted a recognised test, the Brief Neuropsychological Cognitive Examination (BNCE), "a comprehensive evaluation of all aspects of cognitive functioning including memory, gnosis, praxis, language, orientation, attention and executive functioning".

52. Part one, she said, examines orientation, memory, naming, comprehension and constructive praxis in relation to conventional types of information processing.

53. Part two, she said, assesses more complex abilities, with the assessment of shifting set, attention and working memory, aimed at processing novel, incomplete and less conventional types of information processing.

54. Mr Greig scored 13/15 on part one and 4/15 on part two, a total of 17/30. This, she said, placed Mr Greig in the range of moderate impairment. In particular, it meant the following abilities were below normal, at moderate impairment unless stated otherwise:

(a) memory - disorders in this subtest are consistent with amnestic disorders, perhaps related to lesions in the hippocampal or mesencephalic structures, which are the areas affected by Alzheimer's disease;

(b) shifting set - that is, the ability to change from an established pattern of responding;

(c) incomplete pictures - the processing of incomplete information which plays an important role in brain functioning. Mr Greig had a severe impairment on this ability;

(d) similarities - a widely applied test of conceptual thinking. Mr Greig scored within the mild impairment range;

(e) attention - addressing visual attention and the ability to concentrate in the course of a calculation;

(f) working memory - Mr Greig had a severe impairment for this sub-test.

55. Dr Thomas concluded that the results made it probable that Mr Greig was suffering from a primary degenerative dementia. There were, however, some inconsistencies, with an unusual pattern of responding to some subtests and that the results achieved would ordinarily be associated with an inability to live independently.

56. As a result, a further test was conducted, the Test of Memory Malingering (TOMM), to further assess his motivation for optimal performance. He scored below the cut-off for the learning trial, suggestive of not putting forth maximum effort, but she noted that dementia patients with advanced disease may score in this range.

57. Dr Thomas concluded that it was "both possible and likely that Mr Greig does suffer from some level of cognitive impairment but that this impairment may be somewhat overstated." Her opinion was:

Overall, it is my clinical opinion that based on the evidence to hand, including neuropsychological testing, that [sic] Mr Greig suffers from a level of cognitive impairment which likely precludes him from being able to assist in his own defence or be able to understand the trial's nature and objectives without impairment. As such, I would deem him to be unfit to plead.

58. She then addressed each of the statutory criteria and opined that Mr Greig was unfit to plead in respect of each of them. She considered that Mr Greig "suffers from a global intellectual impairment and not a pure memory disorder". Thus, his impairment could not be compensated for by memory aids.

59. Dr Thomas gave oral evidence before me. She was measured, careful and thoughtful in her evidence and I formed the opinion that she was attempting to be as dispassionate and objective as she could be.

60. She noted that the examination has been conducted over two hours, which included reading the reports and other material provided, as well as obtaining a social history from Mr Greig and conducting the relevant tests.

61. She noted that an anti-mortem diagnosis of Alzheimer's disease must always be preliminary, but that the cognitive impairment could be assessed more clearly. She noted the clear wish of Dr George to have a neuropsychological assessment to confirm and expand on his clinical findings.

62. Mr Greig's main impairment was with the shifting set and working memory where he was severely impaired. He was moderately impaired in respect of memory preservation, ability to attend and at a mild level on his capacity to think conceptually.

63. The problem with his working memory impairment was that, if a concept was not held in the working memory, he could not think about it and this would, in her opinion, make it impossible for him to follow proceedings in court.

64. Her opinion was challenged in cross-examination. The main challenge was that the test results seemed inconsistent with what was said to be his present situation, though there was no direct evidence as to much of this, namely that Mr Greig could drive, indeed arrive at her rooms on time, on his own, play golf and live independently.

65. Dr Thomas pointed out that driving depends on both short and long term memory. The skills involved, she said, were those well embedded in his memory; they were, she said "preserved capacities". Golfing, she pointed out, was not a complex activity.

66. It was also put to Dr Thomas that on part one of the BNCE, Mr Greig had scored highly. She accepted this, but pointed out that these abilities were not so much the ones that would be called into play in legal proceedings.

67. The question to be faced by a court required to determine an application in respect of an accused or a defendant who may be unfit to plead has been succinctly summarised by Penfold J in R v Bailiff (2010) 5 ACTLR 1 at 4; [9] as follows:

Section 311 of the Crimes Act sets out the criteria for determining whether a person is fit to plead, and s 312 of that Act sets out the nature of the inquiry and determination. ... In summary:

(a) A person is presumed to be fit to plead.

(b) The presumption is rebutted if it is established that the person is unfit to plead.

(c) A person is unfit to plead if his or her mental processes are disordered or impaired such that the person cannot understand, or participate properly in, various specified elements of the normal criminal processes.

(d) The question of fitness to plead is a question of fact to be decided on the balance of probabilities, with no party bearing a burden of proof.

68. I have analysed at some length in Egan v JG [2010] ACTSC 53 and also in R v Fisher [2011] ACTSC 56 the issues that have to be addressed in relation to the application of the statutory criteria to the application. I apply the approach there expressed.

69. The issue here, however, is not so much a legal issue but the factual issue of whether the evidence has, on the balance of probabilities, satisfied me that Mr Greig is unfit to plead.

70. There is no doubt that Mr Greig has a dementing illness, most likely Alzheimer's disease. There was, ultimately, no real challenge to that. It is, as Dr George said, a disease that progresses, debilitating the sufferer more over time. It must be a fine question to determine the point where the disability has so progressed that the sufferer is unfit to plead. I can, in that context, completely understand Dr George's asserted discomfort at being, in effect, forced to make the difficult judgement about whether that point has been reached.

71. It is not insignificant that he clearly would have been much more comfortable had he had a neuropsychological report on which he could rely. I have that luxury and the expert opinion of the author who has, to some extent, delved below the surface of the clinical examination of Dr George and considered that the apparent capacities that he had found were probably not capacities that Mr Greig really had.

Reconciling the expert opinion with the agreed facts

72. Against this is the counter-intuitive situation of Mr Greig, though not really contested by or on behalf of Mr Greig, that he is functioning at a relatively and apparently high level in the community: driving, playing golf, living independently. All these are skills which, at an intuitive level, one would think would not be able to be carried out - at least not safely or effectively - by someone as cognitively impaired as Mr Greig is assessed as being.

73. Dr Thomas, however, did provide some answers to this, pointing out that many of these tasks rely on the long-term memory that Alzheimer's disease does not necessarily disrupt. These tasks also rely on preserved capacities.

74. Another relevant factor is, of course, that the degeneration can be hidden and deceptive even for those close to the sufferer. In this regard, the comment by Dr Richardson of the attitude of Mr Greig's daughter is very illuminating, when she said:

Although initially a little dismissive of her father's (and my) concerns re the development of true cognitive impairment, I think by the end of the consultation (especially after watching her father's MMSE performance) she realised there are indeed some issues. I think she initially thought the cognitive change she has been witnessing ?over the last 1-2 years was due to normal ageing.

75. That someone, his daughter, who, on the evidence, he "sees ... frequently for meals" should be so unaware of the cognitive impairment shows that the external capacity to function does not necessarily represent the actual level of capacity and that the learned skills which operate may well mask the true level of impairment.

76. I also take into account that Dr Thomas knew the skills he has and exercises. She set these out in her report. Dr George was less aware, though he did know that Mr Greig played golf twice a week. Despite this knowledge, which, as I have said, is to the layperson rather counter-intuitive, they both declined to resile from their opinions that Mr Greig was unfit to plead.

77. The only matter that warrants further comment is the fact that Dr George described the source of the difficulty as Mr Greig's short-term memory loss. Section 311(2) of the Crimes Act provides that a person is not unfit "only because a person is suffering from memory loss".

78. Were memory loss alone the cause of Mr Greig's incapacities under s 311(1), then, as I noted in R v Sutherland (2012) 262 FLR 267 at 277-9; [62]-[78], that would preclude a finding of unfitness.

79. It seems to me, however, that what is said here is more than this in two respects. In the first place, as was found in R v Griffiths [2008] ACTSC 77, the memory loss, especially of the working memory, prevents Mr Greig from integrating the information and prevents him, in Dr Thomas' words, "from thinking".

80. Thus, it is not only memory loss, but the impairment it causes the cognitive processes themselves, that impairs Mr Greig's ability to participate in any trial at the required level.

81. Secondly, there were other issues that were important. Dr George referred to the lack of capacity to think abstractly and his variable attention span. If, through impairment, an accused or defendant cannot pay attention, that may justify a finding of unfitness: R v Sutherland at 277; [58]; R v McKitterick (2004) 36 SR(WA) 115 at 119; [24]; R v Polanski [1999] NSWSC 433 at [53].

82. Having carefully considered the evidence, I am satisfied on the balance of probabilities that Mr Greig is unfit to plead.

83. Accordingly, I uphold the appeal. I will set aside the finding by the learned Chief Magistrate and substitute a finding of unfitness and remit the proceedings to the Magistrates Court to be dealt with according to law.

I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the applicant: Craig Lynch & Associates

Solicitor for the respondent: ACT Director of Public Prosecutions