Solicitors:
Director of Public Prosecutions - The Crown
Legal Aid Commission - The accused
File Number(s): 2016/62763
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Judgment
HIS HONOUR: This judgment concerns the fitness to be tried of Tumi Bartley, a woman who has been charged with an offence of wounding Andrew Hutchinson with intent to cause him grievous bodily harm with an alternative count of wounding him being reckless as to whether actual bodily harm would be caused to him.
As I understand it there is no dispute that Ms Bartley stabbed Mr Hutchinson nor is there any dispute that Ms Bartley is significantly mentally unwell, so unwell that she has difficulty accepting that situation. Dr Allnutt who has seen Ms Bartley twice says that she probably suffers from bipolar affective disorder with a differential diagnosis of schizo affective disorder. Ms Bartley provides a history of mood and psychotic symptoms. Her psychiatric history goes back to her early teens. She has had multiple admissions to psychiatric hospitals. She has been prescribed medication for many years and sometimes she is compliant and sometimes she is not. Indeed she was quite recently held in the screening unit. She is reluctant to take medication and given her present status she cannot be forced to do so.
An issue regarding her fitness was raised before she was arraigned. Proceedings commenced yesterday. They were conducted in a non‑adversarial way. Both Ms David who appears for Ms Bartley and the Crown took the appropriate attitude that their role was to assist me in coming to that right conclusion on the evidence before me. No party bears any onus of proof. What I have to decide on the balance of probabilities is whether Ms Bartley is fit to be tried.
There is no doubt that Ms Bartley satisfies many of the Presser tests. She has a good understanding of many aspects of the criminal trial, the role of the lawyers, the role of the judge, the role of the jury for example and so appropriately the lawyers have focussed their submissions on those aspects of the present case where it is suggested that Ms Bartley is not fit to be tried. She has been seen by two psychiatrists who prepared reports and gave oral evidence in Court yesterday, Dr Allnutt and Associate Professor Dean. Dr Allnutt, with qualifications, is of the opinion that Ms Bartley is fit to be tried. Associate Professor Dean is of the opinion that she is unfit to be tried. I also heard evidence from Ms Shaw who is Ms Bartley's solicitor instructing Ms David of counsel.
It seems that those aspects of the Presser test where Ms David suggests that Ms Bartley would fail such that she is not fit to be tried concern what is said to be her inability to understand the nature of various options she has available to her as to how to plead to the charges on which she might be arraigned. Allied to that is a suggestion that she is unfit because she is unable to adequately instruct her solicitors regarding her plea. And it is also suggested that Ms Bartley is unable to effectively follow court proceedings during the course of the trial. I will deal with that last aspect first. Both psychiatrists who saw Ms Bartley as recently as yesterday experienced behaviour of Ms Bartley's part where she would, at times, not respond to questions, at least initially but would instead go off on a tangent. Dr Allnutt who spoke to Ms Bartley for an hour said that he was able to, by repeating the question, obtain a proper answer from her. Nevertheless he considered that it would be important, or at least beneficial in Ms Bartley's trial for there to be frequent breaks. Those breaks will allow Ms Bartley to not only have a break from concentrating on what is happening in the trial but also to discuss with her lawyers what has happened.
Dr Allnutt, Associate Professor Dean and indeed almost everyone who has considered this matter, including me, are also concerned about how Ms Bartley would react when the man who she allegedly stabbed gives evidence. This is because Ms Bartley has a genuine belief that this man had raped her shortly before she stabbed him. There are suggestions that this is a deluded belief. Of course if I am unable to be 100% certain one way or the other as to whether this is a delusion or not, although I am inclined to think that it is for reasons expressed by the psychiatrists when they were questioned about this. But more importantly for this aspect of this judgment Ms Bartley's belief that the man who will be giving evidence against her has raped her is no doubt likely to cause her to respond in a way which may impact upon her ability to follow what the witness is saying.
I have to assess matters as they are today, although I am also to assess what is likely to happen in any trial. What arrangements can be made to minimise the distress which Ms Bartley will no doubt feel from seeing the man she believes raped her give evidence against her and how she will in fact respond is a bit uncertain. It may be that very frequent breaks will be needed as the alleged victim in this matter is giving evidence to allow Ms Bartley time to speak to her lawyers and it may be, as Dr Allnutt candidly recognises, that the experience of the trial will be such that the question of Ms Barley's fitness to be tried will be raised again.
At this stage, however, I am satisfied on the balance of probabilities that she is likely to be able to follow the evidence in any trial, especially if arrangements can be made to deal with the issues I have referred to. I take into account my experience of Ms Bartley yesterday. Evidence was called from three witnesses yesterday, the two doctors and Ms Shaw. Ms Bartley would interrupt from her position in the dock of the Court from time to time but it is apparent that her interruptions addressed things which had just been said in evidence, that is material which I can take into account in suggesting that at least yesterday Ms Bartley was able to follow what was being said. When something was said that she disagreed with, she would often express such disagreement.
I suppose at this stage I should also address one aspect of Ms Bartley's behaviour which Ms Shaw was concerned about but which does not really affect her fitness to be tried. Ms Bartley's interruptions, if they occur during a jury trial, would of course be noticed by any jury empanelled for the purpose of determining her guilt or otherwise. Ms Shaw is concerned that her behaviour would prejudice her in the eyes of the jury. Whether that is the case or not, more fundamentally, conduct of that nature does not suggest that a person behaving in that way is unfit to be tried.
Yesterday I gave examples of trials that have been conducted where accused people have acted bizarrely with no suggestion ever being made that that bizarre behaviour affect their fitness to be tried. The Crown referred me to something said by Gleeson CJ in Eastman v R (2000) 203 CLR 1 at [25]‑[26]. His Honour referred to some propositions stated by then Ontario Court of Appeal in R v Taylor (1992) 77 Canadian Criminal Cases (3rd) 551 at 564-565. One of the propositions his Honour endorsed is the fact that an accused person's mental disorder may produce behaviour which will disrupt the ordinary flow of a trial does not render that person unfit to stand trial.
That brings me to perhaps the harder aspect of the matter before me concerning the related issues as to Ms Bartley's ability to instruct her solicitors and her ability to make a decision as to how she will plead to the charge brought against her. It seems that Ms Bartley is able to tell her lawyers her version of events. Her version is that she had been raped by the alleged victim and was so traumatised by what had occurred and in fear of her life that she stabbed him.
I referred before to the possibility, even likelihood, that her version of events is based on a delusion. But as was also said in R v Taylor and endorsed by then Gleeson CJ, the fact that an accused person suffers from a delusion does not of itself render him or her unfit to stand trial even if that delusion related to the subject matter of the trial.
But Ms Shaw and Associate Professor Dean speak about more than just the inability to tell her lawyers what her version of events is. They are concerned about what they believe to be Ms Bartley's lack of ability to understand the nature of the plea options available to her, not guilty, guilty or not guilty by reason of mental illness. Ms Shaw speaks about constant change in Ms Bartley's attitude to which of those options is the one she will take. That is not at all surprising, especially as part of the problem seems to be that she speaks to people in custody who give her wildly inaccurate advice.
In any case, it does not appear that Ms Bartley has ever been asked to address the precise nature of the defence of self-defence or the concept of a plea of not guilty on the grounds of mental illness. I am not at all being critical of Ms Shaw or Ms David when I say that. The time to address the latter aspect, for example, is after psychiatric evaluations have been obtained.
Part of the problem of course is, as I mentioned earlier, that Ms Bartley does not accept that she has been mentally ill for some time. She attributes her mental illness, in the sense of post‑traumatic stress disorder or something similar, to having been raped by the alleged victim. She does not, apparently, understand that she was mentally ill well before she had any interaction with him. This does affect her ability to rationally decide whether she will plead that she is not guilty on the grounds of mental illness.
A similar situation arose in a fitness hearing I conducted some time ago, R v Holt [2009] NSWDC 147. I refer to my earlier judgment because I there set out my conclusion as to how circumstances I just outlined affect the fitness of such an accused person to be tried.
I noted that even if Ms Bartley did not plead that she was not guilty on the grounds of mental illness, that would not prevent that possible verdict being raised by the Crown, the judge and even Ms Bartley's lawyers. So Ms Bartley's difficulties in rationally considering whether she wishes to plead that she is not guilty on the grounds of mental illness would not prevent that option being put before the jury.
As I said earlier, I have to make a decision today about Ms Bartley's fitness to be tried. Dr Allnutt considered that she was at an early phase of recovery and that she may improve although perhaps not to a great deal, although he did recognise that her mental state fluctuated a lot and that things could get worse in future especially under the stress of a trial. Associate Professor Dean was more pessimistic about Ms Bartley's prognosis.
So I fully understand that any decision I make as to Ms Bartley's fitness to be tried today may well need to be revisited in the future.
On the balance of probabilities I am satisfied that she is fit to be tried. She satisfies very well and without doubt many of the Presser tests. The only matters of concern her ability to follow proceedings and her ability to instruct her lawyers particularly as to how she should plead are upon analysis matters which on balance I consider that she does have the necessary capacity such that she is fit to be tried.
No one can predict the future. It may be that during the course of a forthcoming trial matters will change, but if they do then the trial judge is under an obligation to conduct a further fitness hearing.
As I say, my decision is based on how Ms Bartley presented to me yesterday and today. On that basis, I am satisfied that she is fit to be tried.
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Decision last updated: 25 January 2018