Kesavarajah v The Queen [2019] WADC 176 | Case summary

Kesavarajah v The Queen [2019] WADC 176 | Case summary | Zoe

[29]

The State have charged TJD with persistently engaging in sexual contact with MR a child under the age of 16 years with the period specified under s 321A(5) as between 28 February 2014 and 1 September 2015. The State are required to prove that TJD engaged in persistent sexual conduct on three or more occasions. I understand that the State, through MMR, will allege as follows.
In March or April 2014 TJD penetrated MMR's vagina with his penis when she was aged 13. On a date unknown in 2014 when MMR was aged either 13 or 14 she performed oral sex upon TJD. On a date unknown in 2014 when MMR was aged either 13 or 14 TJD performed oral sex upon MMR.
In May 2014 TJD penetrated MMR's vagina with his penis when she was aged 14. This was after he had shown her a pornographic video purporting to show a father having sexual intercourse with his daughter.
In May 2014 TJD penetrated MMR's vagina with his penis when she was aged 14. TJD tied her hands and feet in this episode so as to simulate rape.
On another occasion at around the same time TJD required MMR to wear a school uniform and again they engaged in penile/vaginal sexual intercourse.
On 17 October 2014 when MMR was aged 14 they both stayed at the Rendezvous hotel at Scarborough Beach and engaged in sexual intercourse utilising three different positions. Within the brief there is evidence of a booking made by TJD for one night on 17 October 2014 for 2 adults - PB 145.
On another occasion shortly after that time TJD penetrated MMR's anus with his penis. On another occasion shortly after that time it is alleged that TJD penetrated MMR with a dildo.
On 15 May 2015 when MMR was aged 15 they both stayed at the Pagoda hotel at Como and TJD performed cunnilingus on MMR. He then penetrated her vagina with his penis until he ejaculated. Within the brief there is evidence of a booking made by TJD for one night on 15 May 2015 for 2 adults - PB 148 - 151.
Finally, in August 2015 TJD and MMR engaged in penile/vaginal intercourse for the last time.
None of these alleged events involve conduct of a nature that could have easily been forgotten by TJD.
Photographs said to be of TJD and MMR, in physical contact with one another, are in the prosecution brief at PB 157 - 158, 162 - 164, 175.

[37]

Dr Vidovich accepted that TJD has suffered some brain injury.[2]
The 8 March 2018 MRI brain scan revealed bilateral and systemic signal abnormality in the hippocampo and the caudate nuclei and putamen consistent with hypoxic/ischaemic injury. Dr Vidovich considered that a 'good neuroradiologist' will comment on whatever they find, regardless of whether the clinical question was asked in the first instance.[3]
In his 25 November 2019 email Dr Hargate stated that the 21 November report confirms that the brain damage that was previously found in March 2018 is still patently present and indeed there has been a worsening in the extent of that brain damage by further loss of brain volume.
The further MRI reveals that since March 2018 there has been volume loss with associated T2/FLAIR high signal in the globus pallidus and in the caudate heads, in respect of the latter greater on the right with less pronounced interval volume loss of these nuclei. Abnormal T2/FLAIR high signal persist in the hippocampal bodies, with mild interval volume loss. Imaging appearances are consistent with evolution of the previously demonstrated hypoxic/ischemic insult. There is no acute or interval infarct, new area of brain parenchymal signal abnormality or overt interval brain parenchymal volume loss in other parts of the brain. Major intracranial flow voids are normal. Orbits and extracranial soft tissue structures within the field of view are unremarkable.
Dr Hargate contends that the worsening of brain damage since March 2018 confirms an error in Dr Vidovich's assertion about oedema (rather than organic brain damage) being a potential cause of the findings on the 2018 scans. Dr Hargate maintains that, as he explained in his report, it is damage to these particular brain structures that are most implicated in retrograde amnesia. Additionally, Dr Hargate asserts that the extent of TJD's brain damage is far worse than that of a patient with 10 years of retrograde amnesia that is reported in the article tendered as exhibit 1.
Dr Hargate considered that TJD had at least a mild vascular neurocognitive disorder as reported at par 14.9 of his report.[4] He considered that TJD has an impairment of his cognitive function caused by hypoxic brain injury and that based on his cognitive testing and the radiology findings it was evident that TJD has brain damage.[5] As set out at par 14.8 Dr Hargate applied the DSM-IV tool so as to reach a diagnosis of a mild vascular neurocognitive disorder.
So far as Dr Vidovich was concerned, this more recent MRI did not cause her to alter her opinion based upon the cognitive testing of TJD which I will discuss below. She considered that neuroimaging in and of itself should not be relied upon as confirmation regarding subjective concerns particularly if there are notable clinical discrepancies which she contends for in TJD's case.
Obviously whether a person is suffering from a mental impairment is to be determined at the time of the application. The onus of proof is on TJD. He relies upon the MRI scans of 8 March 2018 and 21 November 2019 in combination with Dr Hargate's neuropsychological assessment.
The term 'brain damage' is not further defined in the Act. The word 'damage' is not defined in Butterworth's medical dictionary. If one has recourse to the Oxford English dictionary it would appear that the terms damage and injury are interchangeable. Injury in turn means a hurt.
I am satisfied that the injury initially noted on 8 March 2018 still exists. I note that the initial MRI scan was conducted some six days after the original insult. I apply a layman's understanding that unlike most other cells in the body, brain cells do not regenerate when they are destroyed. That does not mean that a recovery cannot occur. It does, it seems to me, mean that the original injury is permanent in the sense of a loss of cells that cannot be regenerated, although the brain has a capacity to reorganise itself, to an extent, in order to regain lost function. That assessment is consistent with the 21 November 2019 MRI.
Viewed in that way, TJD will always be subject to a brain injury and accordingly I am satisfied that he has a mental impairment as defined under s 8 of the Act. I must now consider whether that injury means that TJD is unable to properly defend the charge, in particular because of his suggested retrograde amnesia.

[39]

Dr Vidovich explained that anterograde amnesia is (an impairment to) the capacity of the individual to lay down new memories to recall, new information and to then be able to provide that information at different time points.[14] Dr Vidovich conducted a formal assessment with the Evaluation of Competency to Stand Trial - Revised tool.[15] Results from the most recent assessment together with scores obtained at the time of his March 2018 evaluation did not support TJD having an anterograde amnesia.[16] According to Dr Vidovich an intact anterograde memory makes it less likely that a person has retrograde amnesia.
Dr Vidovich noted a consistency in her results and those obtained by Dr Hargate regarding TJD's capacity to learn and retain new information.[17]
In terms of testing for anterograde amnesia (ts 64), Dr Vidovich administered a 16-item wordlist test which involved listening to 16 words repeated a number of times and after a certain number of repeats assessing how many words the patient could remember. Dr Vidovich agreed that when patients are exposed to a test more than once there is an effect called the 'practice effect'. A sub sample will be administered a test a second time to identify the degree to which previous exposure to that information, has influenced their subsequent performance. And so one looks at practice effects to identify whether any chance in the person's performance is over and above what might be anticipated in the context of practice effects alone.[18] Dr Vidovich considered the concept of practice effects to be quite interesting in people that have memory deficits in that 'if you don't remember, you don't remember.'[19] So, if TJD demonstrated improvement because of practice effects, it would suggest that his memory is pretty good. He also improved on the prose material test, but she could not comment on how much that could be due to the practice effect.[20]
Although TJD made a high number of repetitive errors Dr Vidovich did not consider that necessarily shows some weakness in the executive function of his brain. She felt that that was more to do with some attentional issues with TJD, in terms of being able to consistently monitor what it was that he was saying. That might be due to some anxiety in the test situation.[21]
With respect to this test, Dr Hargate noted that TJD's performance reached below average limits.[22] Dr Hargate considered that Dr Vidovich's methodology in administering exactly the same test was 'unforgiveable' because there was another alternative option. In respect of that test and the prose material from the Wechsler Memory Scale[23] Dr Hargate considered that Dr Vidovich's findings that TJD scored average to above average on the tests was attributable to the practice effect.[24]
In regards to the prose test Dr Hargate considered that it was difficult to quantify the degree of the practice effect as there was not the same level of repetition. In respect of delay recall, Dr Hargate scored TJD as below average whilst Dr Vidovich recorded a score of average. Notwithstanding the apparent difficulty in quantifying the degree of the practice effect, again Dr Hargate attributed this superior result to the practice effect.[25]
I accept Dr Vidovich's evidence that if TJD achieved an improved score in a subsequent test because of the practice effect that in itself demonstrates a capacity of the individual to lay down new memories to recall new information and to then be able to provide that information at different time points. That would tell against anterograde amnesia, certainly a moderate or severe anterograde amnesia. Dr Vidovich never concealed the fact that she employed the same test. She was untroubled by Dr Hargate's concerns, given her opinion that if a patient genuinely suffered from anterograde amnesia it would follow that their performance could not possibly improve because of the practice effect. Dr Hargate was entitled to criticise the methodology used by Dr Vidovich, but to describe it as 'unforgivable' was, in my view, unjustified.
Dr Hargate did not consider anterograde amnesia to be an all or nothing concept. Rather, it can be present in different degrees. He noted that at page 1 of the article tendered as exhibit 1, the authors refer to the combination of retrograde amnesia with relatively mild or absent anterograde amnesia.[26]
From the scores obtained for the patient in this article the authors concluded that she had mild anterograde amnesia.[27] Dr Hargate considered that the results leading to that characterisation were comparable to the results obtained both by him and Dr Vidovich for TJD.[28] Dr Hargate considered that it was possible to have retrograde amnesia with mild anterograde amnesia.[29]
In terms of anterograde amnesia, TJD's visual memory scores in the tests Dr Hargate conducted were extremely low. TJD's verbal scores were mildly reduced. Accordingly Dr Hargate felt that TJD had mild to moderate or mild to severe anterograde amnesia, so that it is difficult to have one term to encapsulate two disproportionate scores.[30]
On balance I accept that TJD has some impairment of memory for events that have occurred since 2 March 2018. The extent of that impairment is difficult to quantify. In my view it is significantly less than the extent of the retrograde amnesia contended for. Particularly given that the latter is said to extend for four or five years and is so profound as to completely defeat any ability of TJD to independently remember anything about MMR.

[43]

Dr Vidovich pointed to the work of a Dr Michael Kopelman which identifies and critiques some of this previous earlier literature where there have been (supposed) cases of a disproportionate or an isolated retrograde amnesia.[35]
Dr Vidovich stated that neuropsychologists would typically not use the term 'amnesia' unless they were specifically referring to an all-encompassing memory impairment. They would generally use the terms 'deficit' or 'impairment' unless the individual actually has amnesia, which one might see in someone with Alzheimer's disease who cannot take on board or learn or retain new information. In that context the characterisation 'mild' would generally not apply.[36]
For his part, Dr Hargate disagreed with Dr Vidovich's conclusion that there is no convincing evidence that TJD is suffering from retrograde amnesia.[37] He disagreed with the suggestion that retrograde amnesia involves the complete absence of recall of pre-injury events. He considered that was not supported by the research evidence. Rather, the research evidence supports particular patterns. Dr Hargate noted that there are some exceptional cases where retrograde amnesia can be very dense, namely a complete absence of memory, but in most cases it is a matter of degree.[38] One pattern in the literature is of memories that are oldest being the best. And then as you move forward in time towards the injury, the capacity to remember progressively worsens.[39] As noted below, that does not seem to be the pattern with TJD. In Dr Hargate's opinion retrograde amnesia is variable.[40]
Dr Hargate considered that the fact that TJD could remember some events that had happened two weeks earlier, in the context of his inability to remember other events (in particular details about his alleged offending) simply shows that his retrograde amnesia is patchy. It is not an absolute all or nothing phenomenon.[41]
Based upon the material before me I do not consider there is unanimity with the neuropsychological profession as to whether one can apply epithets such as 'mild' to amnesia, retrograde or anterograde or whether if one is using such terms one is really describing memory deficits not amnesia.

[47]

Dr Vidovich expressed an opinion that initial neuropsychological assessment in the context of evaluation for TJD's criminal matters revealed invalid test performances and significant concerns regarding attempts to feign cognitive impairment.[46]
Dr Vidovich noted numerous examples of TJD having intact retrograde memory and a pattern of recall that would be inconsistent with the stated level of retrograde amnesia. Dr Vidovich noted that with retrograde amnesia one would typically find graded memory loss, in that the events closest to the time of the injury are most challenging or most difficult for the person to recall, but when the person goes back in time, the memories are more relatively preserved.[47] If that is so, then staying with Dr Hargate's period of about four to five years, memories of around February 2014 when the offending is said to have commenced and when TJD is alleged to have met MMR should be relatively more preserved then, for example, events in February 2018. Further, if TJD was able to recall past events closer to the time of the injury, his recall for events further back in time should be intact to a degree.
Dr Vidovich referred to TJD's self-report explaining his retrograde amnesia as inconsistent with the clinical evidence and with the research evidence around the nature of this condition. At the time of TJD's hospital admission he was interviewed by a number of clinical professionals within the hospital and was seemingly able to provide details around events very close in time and leading up to his hospital admission.[48]
Dr Vidovich was asked about some sections of Dr Hargate's report at par 5.9 that she commented upon in her own report. Dr Hargate had referred to a review by a consultant psychiatrist on 4 March 2018 where TJD could recall that he had moved house with his partner two weeks ago, had his own business called Panther Computers and works from home.[49] He did tell the psychiatrist that he could not remember his impending court case and charges, was asking why he was in hospital and describing his memory as fuzzy. On 7 March 2018 TJD 'eventually admitted' that he was involved in a court case which he found frustrating: par 5.11. On 8 March he could recall buying helium from a party supply store but was not sure why and said the incident was still fuzzy: par 5.17.
Also, at par 9.9 Dr Hargate had noted that TJD informed him that in the period from February 2017 to March 2018 he consumed alcohol more heavily.[50] As set out at par 7.5 TJD reported to Dr Hargate that he worked in Karratha as a business systems analyst on a salary of $120,000 to $150,000 for seven years, and last worked in this role in 2016 when he was made redundant. He also advised that he has worked in the Uber industry since then.[51]
When asked about TJD's professed inability to recall any of his prior IT knowledge, Dr Vidovich considered that it would be quite unusual to have no recall at all of TJD's previous IT knowledge.[52]

[50]

I asked Dr Hargate whether he was working on the basis that TJD had exhausted his memory at that stage and these six pieces of information were literally the only matters that he could recall, or that these were some of the matters that he related. Dr Hargate acknowledged that these pieces of information could be some (of the matters that he recalled and could relate at that time).[59]
Dr Hargate accepted that TJD did not have a completely blank memory for the two-week period leading up to the point when he was being questioned in hospital.[60]
When asked about TJD advising Dr Hargate that in the period following his arrest in February 2017 up to March 2018, he had consumed alcohol more heavily but he could not recall what his feelings were during that period,[61] Dr Hargate stated that he did not know whether this a true memory or whether it was information that TJD was given at a later date. Dr Hargate did not recall if he had asked TJD about that.[62]
Dr Hargate was not prepared to accept that the information seemingly provided directly to Dr Hargate by TJD as set out at par 7.4 - par 7.5 constituted 'quite a bit of information'.[63] That records that TJD apparently told Dr Hargate that:
- he left school at the completion of year 12 at aged 17;
- he worked as a concreter for a few months;
- he then began an apprenticeship as a cabinet maker;
- he left that apprenticeship after a couple of years due to a thumb injury;
- he then began to work in an office;
- he completed a certificate three in business IT in a one-year full-time course;
- amongst his subsequent IT roles was work for Supermarkets West Propriety Limited on a salary of $40,000 - $60,000 crosschecking barcodes;
- he worked as a business system specialist for two years on a salary of $80,000 per annum;
- he worked in Karratha as a business systems analysist on a salary of $120,000 - $150,000 for seven years;
- he was made redundant in 2016;
- he has worked in the Uber industry since.
It is somewhat puzzling why Dr Hargate found himself unable to agree that this constituted 'quite a bit of information'. It is also significant that Dr Hargate stated that in respect of this information he did not know whether they are genuine memories or something that TJD reported to him based upon information given to TJD by others. It is odd that Dr Hargate did not ascertain this in his interviews, whereas with details TJD reported about the alleged offences, as set out at par 3.10 - par 3.11, he did.[64] When pressed on the matter Dr Hargate accepted that TJD qualified all of the information provided at par 3.10 - par 3.11.[65] That is not apparently the case with any of the information provided at par 7.5 - par 7.6. This did not give rise to a 'red flag' so far as Dr Hargate was concerned.
Dr Hargate rejected Dr Vidovich's conclusion that the ability to recall so many different events prior to March 2018 refuted the presence of a retrograde amnesia. In so doing he relied upon some matters that TJD stated that he could not recall such as when this business ended or how he had commenced his work as an Uber driver.[66] Dr Hargate considers that these partial recollections merely prove that the retrograde amnesia is patchy and vague, not completely absent in that period.[67]
In his report at par 3.10 Dr Hargate elicited from TJD that he thought the complainant was called (and gives the correct first name) and:[68]

[74]

In R v Mailes [2001] NSWCCA 155; (2001) 126 A Crim R 20 the appellant was found guilty of murder. Prior to appearing for trial, an inquiry was conducted into the appellant's fitness to stand trial pursuant to the Mental Health (Criminal Procedure) Act 1990 (NSW). The jury found that the appellant was fit to stand trial. The question of the appellant's possible unfitness was again raised by counsel before the trial and on separate occasions during the trial; however the trial judge declined to order a further fitness hearing. The appellant appealed against the conviction, relevantly on the ground that the trial miscarried due to the fact that a real question arose at trial as to the appellant's fitness which should have led to a further fitness hearing. Before determining the issue on appeal the court was required to consider whether an accused who is intellectually disabled, but who does not suffer from a mental illness, can qualify for a fitness hearing under that Act.
As Wood CJ at CL (with whom Spigelman CJ and James J agreed) noted at [135] - [137] in R v Podola [1960] 1 QB 325; (1960) 43 Cr App Rep 220 the accused argued that he was unfit to stand trial, as he had lost his memory of the relevant period, through a condition of hysterical amnesia. The trial judge instructed the jury to consider whether the accused's amnesia was genuine, and if so, whether he was unfit to stand trial. The jury found that the accused did not suffer amnesia, and he was later convicted. Although the accused did not appeal against the conviction, an appeal was lodged by the Home Secretary to determine whether there had been a misdirection on the subject of fitness to plead, concerning whether or not the onus of proof rested on the prosecution or the defence. The Court of Criminal Appeal found that even if the accused had in fact lost his memory this would not impact upon his fitness to be tried.
His Honour then referred at [172] to R v Drummond (Unreported, NSWCCA, Library No 60861/93, 27 May 1994) where 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 (1946) SC (J) 37 and following R v Dennison (Unreported, NSWCCA, Library No BC8802160, 3 March 1988) 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.

[75]

In Drummond the accused suffered a serious motor vehicle accident in December 1991 and was arrested on a suspicion of sexual assault offences in September 1992. In the motor vehicle accident Mr Drummond sustained a fractured skull with underlying haemorrhage resulting in a diagnoses of residual brain damage and likely consequent memory deficit. One of the experts who testified provided the opinion that there was a genuine impairment of memory and the claimed amnesia in respect of the offences to be charged was feasible in terms of the brain damage suffered and consistent with the type of memory defect that other people with similar brain damage might experience.
The accused had told this expert witness that he did not know of his own memory about the alleged offence but he had learned amount of information by going over and over it with a co-accused. The witness considers the difficulty lay in the ability of the accused to instruct his counsel concerning the events central to the charges. The witness believed the accused was competent in relevant respects apart from his inability to give his legal advisers his version or instructions upon the events which were the subject of the charges.
The medical witness called by the Crown thought that apart from a history of patchy memory loss there was nothing significant to find. He did not think that the memory loss was inconsistent with the after-effects of an injury and thought it was present but probably subtle and worse at some time than others.
Drummond's appeal was on the basis that the trial judge erred in deciding that there was no evidence fit to be left to the jury to sustain a finding that the accused was unfit to be tried. Counsel for the accused placed reliance upon the observations of Smith J in R v Presser.
Grove J noted (page 6) that Presser was a case in which the medical reports indicated the presence of serious mental defects in the particular accused since youth as opposed to a discrete issue about a gap in memory. Grove J noted that save for the fact that the source of the amnesia was hysteria rather than traumatic brain damage the facts in the Scottish case of Russell v His Majesty's Advocate raised an almost identical issue. In that case it was said that the accused had a loss of memory extending over and covering the period of the charged offences. Lord Sorn approached matters on the basis that it is enough for an accused to be able to rationally speak to his/her advisers at the time of trial and tell them what he knows or does not know of the charges. His Lordship rejected a view that for an accused to be fit to plead he must possess a recollection of the period the charges so that he can give his version of the events in such explanation as he thinks fit to those who are going to defend him. Lord Sorn's ruling was upheld by a full bench of the High Court and followed by the English Court of Criminal Appeal in R v Podola.
His Honour then referred to the judgment of Street CJ in Dennison. The appellant there suffered from a state of alcoholism. He had asserted, and the psychiatrist called on his behalf endorsed that assertion, that he had complete amnesia so far as the offence charged against him. Street CJ (with whom Carruthers and Finlay JJ agreed) said:

[80]

In R v Richards (1994) 64 SASR 42 (Mullighan J) the court was concerned with an application for a permanent stay as opposed to a request for a finding that the accused is unfit to stand trial. Nonetheless this case remains instructive. The applicant was charged with four counts of unlawful sexual intercourse with a girl aged 15 years and one count of indecent assault upon the same girl. He brought an application for a permanent stay of the criminal proceedings on the ground that a fair trial was not possible due to loss of memory of his life events at the time the alleged were said to have occurred.
Police officers spoke to the applicant on 13 November 1993. They told him, in a general way, of the allegations made by the girl which he denied. He returned to his mother's home and attempted suicide by hanging. He remained totally unconscious for about eight days and then gradually regained consciousness over a period of some days. By 23 November he was conscious but was not fully orientated. Thereafter his physical state improved but he suffered brain damage due to anoxia caused by strangulation in his attempt on his life.
His Honour concluded, for the purpose of resolving the issues raised by the application, that the applicant did sustain brain damage due to anoxia caused by the hanging incident and in consequence suffered both anterograde and retrograde amnesia to such an extent as not to be able to remember many of his life events at the time the alleged offences are said to have occurred. His Honour had some difficulty in determining precisely the extent of his loss of memory of events at relevant times due to inconsistencies in the applicant's evidence as to what he could remember but his Honour was not prepared to conclude that such inconsistencies were due to a lack of truthfulness. His Honour thought that the applicant had suffered brain damage and features of his demeanour in the witness box, such as delay in answering questions and inconsistencies in his evidence might be symptoms of that damage. As I have noted, in the matter before me TJD did not give evidence.
Mr Richards' evidence was that he would not say whether he had sexual intercourse with the girl or indecently assaulted her as alleged or at all because he simply could not remember. It is in these circumstances that he claimed his trial could not be fair and that there should be a permanent stay on the ground that the court will prevent its process being used in a manner which gives rise to unfairness. His counsel submitted that it is inconceivable that Mr Richards could have a fair trial when he could not recall matters which may afford a defence or assist in the preparation and presentation of a defence.
Furthermore, he argued, if the matter proceeds to trial the focus may be upon the genuineness or otherwise of the claim of amnesia and not on the issues raised by the prosecution case which would also result in unfairness. The accused would in a sense, be at the mercy of the purported strength of the prosecution case which could not be effectively challenged by a defence based upon a memory of events which may afford a complete answer to the charges. Without question the applicant would be disadvantaged in the preparation for, and at, his trial. In cases of this nature even a different version of events peripheral to those events which are the subject of the charges could lead to a lack of confidence in the reliability and accuracy of the evidence of the alleged victim so that proof beyond reasonable doubt could not be achieved.
The submissions thus made in the Richards case are in essence the submissions advanced in TJD's written submissions at par 50 - par 56.
Mullighan J concluded that nevertheless lack of memory on the part of an accused could not, in his Honour's view, justify the extreme step of a permanent stay of a criminal proceeding particularly when it is in no way caused by, or associated with, any conduct on the part of the police or the prosecuting authorities:

Kesavarajah v The Queen

At a glance

Court

Decision date

Source

Judgment (85 paragraphs)

THE STATE OF WESTERN AUSTRALIA -v- TJD [2019] WADC 176 (28 May 2025)

Parties

Legislation Cited (2)

Cases Cited (4)