The accused has been charged on indictment that on 7 February 2020 at Smithfield, he committed the following offences against DH (the complainant):
1. Count 1: Aggravated sexual assault, in the sense that at the time of the offence, the complainant had a cognitive impairment, contrary to s 61J(1) of the Crimes Act 1900 (NSW);
2. (alternatively) Count 2: aggravated sexual touching, in the sense that at the time of the offence, the complainant had a cognitive impairment, contrary to s 61KD(1)(a) of the Crimes Act; and
3. Count 3: Aggravated sexual assault, in the sense that at the time of the offence, the complainant had a cognitive impairment, contrary to s 61J(1) of the Crimes Act.
He is also charged with related offences on a s 166 certificate, being two charges of aggravated sexual touching of another person.
Presently before the Court is an inquiry into the question whether the accused is fit to stand trial.
[2]
Concepts
A "cognitive impairment" is defined in s 5 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ('the Act').
A person has such an impairment if:
"(a) the person has an ongoing impairment in adaptive functioning
(b) the person has an ongoing impairment in comprehension, reason, judgment, learning or memory, and
(c) the impairments result from damage to or dysfunction, developmental delay or deterioration of their brain or mind that may arise from a condition set out in s 5(2) or for other reasons."
Section 5(2) provides that a cognitive impairment may arise several conditions including relevantly:
"…
(c) dementia
…"
The accused is 70 years of age.
A report from a psychiatrist of 1980 featured the opinion that the accused sustained a facial injury resulting in vertigo from a concussive injury with post-traumatic anxiety. Even from 1983, it appears, he had issues with depression, anxiety and difficulties with his memory and concentration.
It is uncontroversial that in July 1987, he was involved in a motor vehicle accident. Contemporaneous medical records indicated that he sustained significant damage to his brain and also post-traumatic epilepsy. Reports between 1989 and 2003 by a neurologist indicated the presence of language difficulties, significant memory loss, impairment of the frontal lobe function and marked intellectual deficits.
The accused is well-known to Justice Health. There have been many opinions expressed about him. In 2012, a psychiatrist, Dr Cavanagh, diagnosed dementia due to a head trauma and noted problems with memory, language, motor skills and problem-solving. In 2015, Dr Nielssen opined that he suffers from dementia due to a combination of traumatic brain injury, microvascular disease and possibly hypoxic brain injury.
There were some discordant views however. Some suggestions made by specialists who had assessed him throughout 2012 to 2015 referred to possible malingering, or feigning the degree of impairment.
The preponderance of the evidence indicates that he suffers from dementia, which was secondary to a head injury. That is a neurocognitive disorder and is expressly identified in s 5(2)(c) of the Act.
In his most recent report, the Accused's psychiatrist, Dr Niellsen confirmed his earlier diagnosis of dementia, due to a combination of traumatic brain injury, microvascular disease and hypoxic injury.
Professor Goldberg who reported to the Crown, opined that the accused has some degree (possibly mild) of such neurocognitive disorder; though found it difficult to be certain as to the degree of impairment. Professor Goldberg considered that there was a possible psychogenic component to his presentation following the 1987 motor vehicle accident; which raised the possibility of malingering or a 'fictitious disorder'. Nevertheless, in his view, that did not exclude the accused having a real neurocognitive disorder.
It is unnecessary to evaluate the severity or degree of this cognitive impairment. It suffices to say that the accused has a cognitive impairment for the purposes of s 5.
[3]
Determining his present fitness to be tried
By the provisions in Division 2 of Part 4 of the Act, the question of a person's fitness is to be determined on the balance of probabilities (s 38). The inquiry is not to be conducted in an adversarial manner (see s 44(3)), and there is no onus of proof in relation to such an inquiry (s 44(4)).
By s 36 of the Act , a person will be taken to be unfit to be tried if, because they have a mental health or cognitive impairment (or both), they cannot do one or more of the following:
"(a) understand the offence the subject of the proceedings,
(b) plead to the charge,
(c) exercise the right to challenge jurors,
(d) understand generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged,
(e) follow the course of the proceedings so as to understand generally what is going on,
(f) understand the substantial effect of any evidence given against the person,
(g) make a defence or answer to the charge,
(h) instruct the person's legal representative so as to mount a defence and provide the person's version of the facts to that legal representative and to the court if necessary,
(i) decide what defence the person will rely on and make that decision known to the person's legal representative and the court."
These criteria reflect Presser criteria [1] in common law.
In addition, s 44(5) of the Act provides:
"In addition to any other matter the court may consider in determining whether the defendant is unfit to be tried for an offence, the court is to consider the following -
(a) whether the trial process can be modified, or assistance provided, to facilitate the defendant's understanding and effective participation in the trial,
(b) the likely length and complexity of the trial,
(c) whether the defendant is represented by an Australian legal practitioner, or can obtain representation by an Australian legal practitioner".
Consistent with that provision, it is appropriate to initially consider the nature of the Crown case.
[4]
Crown case
The Crown Case Statement was before the Court. The Crown Case Statement was substantially derived from the content of an ERISP transcript of an interview of the complainant with the Police on the evening of the date of the alleged offending, which I have reviewed. What follows is the Crown's account of the circumstances of the alleged offending, based on its Case Statement.
As at the date of the alleged offending, the accused was 70 years old; the complainant was 28 years of age. The accused was a family friend of the complainant; having known her for about 20 years.
The complainant has an intellectual disability arising from Foetal Alcohol Syndrome and has received special support in and outside school since she was very young. According to the complainant, this apparently affects the functioning of her brain in a way which results in her "keep on forgetting stuff". In her interview with police, she indicated by example, that even her very short term memory was affected. Sadly, it appears that she will never achieve a level of intellectual ability which would take her outside the classification of a diagnosis of having only a mild intellectual disability. Thus her condition means that she fulfils the requirement of having a 'cognitive impairment' within the meaning of the Crimes Act 1900 (NSW). This is the matter of aggravation that the Crown relies upon on each of the counts on the indictment.
On 7 February 2020 at about 4pm, the complainant was left at home. Her brother and father had left the home to visit respective friends. Whilst using her laptop she heard a knock on the door. It was the accused.
The Crown states that the accused inquired whether her brother or father were home and when the complainant responded in the negative, he let himself in and immediately hugged the complainant. Thereafter, the Crown states, he began to compliment her on her appearance and hugged her again. Then, he walked over and sat on a brown sofa.
Initially, according to the Crown, after having pulled down his pants and pulling out his penis, the accused told the complainant to lick it. The complainant said she did not want to. The accused then told her to touch his penis, which she did. She felt that it was hard before she pulled her hand away. According to the Crown, the complainant did not want to do this, but followed his instructions. This was the conduct constituting one of the back up charges (seq 7).
After asking her whether she watched sex on YouTube, according to the Crown, the accused stood up off the sofa and grabbed the complainant; then took her back to the sofa and pushed her on her back. He began to kiss her, grabbed her breasts and kissed them. He then placed one of his fingers inside the complainant's underwear and rubbed it up and down in her vagina. The complainant told him to stop and expressed that she was uncomfortable. This was the conduct constituting seq 1 & 2 on the indictment.
According to the Crown, he then lifted her dress and slipped off her underwear. He lifted up her legs and grabbed his penis. He told the complainant to 'get comfortable' and foreshadowed that he would shortly insert his penis into her vagina. The complainant begged him not to as she was uncomfortable. The accused ignored this and asked her to not disclose the sexual activity that he meant to occur.
The Crown states that he rubbed his penis on her vagina. This act constituted the second of the back up charges (seq 8). He then pushed his penis into her anus, causing the complainant to shout out in pain and she told him to stop, but the accused continued to penetrate. This conduct constituted seq 6 on the indictment. Eventually he pulled out his penis and ejaculated into his hands.
According to the Crown, the accused again tried to get the complainant to agree to not tell anyone what had occurred. However the complainant did complain by sending a message to her neighbour. That set in train a police investigation. Features of that included an initial denial by the accused, to the complainant's brother, that he did anything of an intimate nature beyond kissing her chest. But eventually, in the presence of the brother, he explained that he was only trying to comfort the complainant after her expressing suicidal ideation, that the complainant had hugged him and that he 'then lost it. I don't know what happened." After the complainant returned to her house, the accused said to the complainant that "I did what I did because I love you".
The accused was arrested two days later.
[5]
Section 44 considerations
Neither the Crown nor the accused alluded to these consideration in their written submissions. As to the question raised by s 44(5)(a), no suggestion has been made by either party how the trial might or could be modified or assistance rendered to the accused to allay his impairment.
As to the question raised by s 44(5)(b), it might be expected that the trial could conclude within 4 days. Leaving aside the accused's concerns, there is additional complexity caused because of the complainant's own condition which, she indicated, affects her memory capacity. These two considerations under s 44 indicate that the trial is not likely to be straightforward.
As to the question raised by s 44(5)(c), this is a neutral consideration. It would be expected that the accused would be represented by Ms Moen, of Counsel, who appeared for him in the present inquiry, or someone with comparable experience.
[6]
Dr Nielssen's report
Dr Olav Nielssen is a psychiatrist. He prepared a report dated 3 March 2021. He had previously prepared reports about the accused following interviews with him in 2012 and 2015. He was familiar with the Court Attendance Notices, the accused's criminal history and a report of a neuropsychologist, Dr Amanda White, dated 18 March 2015. He also spoke to the accused's son.
Dr Nielssen opined that the accused was unfit for trial. He considered that the accused was unaware of the charges he faced and would be unable to make a defence to them, other than barely denying them. He generally demonstrated no awareness of the nature of the proceedings or the procedure to be followed. He could not follow what was said, sensibly respond to allegations or provide instructions.
[7]
Professor Greenberg's evidence
The Crown relies upon the report of a forensic psychiatrist, Professor Greenberg, dated 9 June 2021. Professor Greenberg practices in the Sydney CBD. He has practised medicine for 38 years and is the Professor of Forensic Psychiatry at the University of New South Wales. So esteemed is he in his field that he has been a recipient of the medal of the Order of Australia for medicine in the field of mental health. He has also received awards from the American Academy of Psychiatry and the Law and American Academy of Forensic Sciences. He has a particular expertise in relation to sex offenders, risk management and sexual violence.
Professor Greenberg had been supplied with the Crown Case Summary (whose content I have summarised) as well as other material not directly before the Court (a criminal history, psychiatric reports from Dr Nielssen (24 July 2012, 20 October 2015), a neuropsychological report from Dr White (18 March 2015) and information sourced from the accused's wife, Hiam. He qualified his report by indicating that he did not have certain material.
Professor Greenberg tested the accused's capacity to understand the allegations against him. He then asked him questions about his past psychiatric, medical, drug and alcohol and personal histories. Thereafter he conducted a mental status examination and reviewed the brief of material he had been supplied by the Crown. This included the opinions of Dr Nielssen and Dr White. He also alluded to information he received from the accused's wife.
Professor Greenberg opined that the accused was presently unfit to plead and stand trial. He reasoned, with reference to the Presser criteria [2] which is now reflected in s 36(1), that:
He did not understand the nature of the charges he is facing;
he could not demonstrate an understanding of the various pleas he might make;
he did not demonstrate that he understood what the evidence was, or how it might be tested;
he did not understand the roles or functions of court participants; of his own legal representative, the role of the prosecutor, witnesses or Judge;
he could not decide on what defence to make;
he would have difficulty instructing Counsel.
he could not give evidence.
I accept all of this evidence, which broadly coincides with Dr Neillsen's opinions in his most recent report.
I find that the accused is unfit to be tried.
[8]
Section 47(1) - may become fit or will not become fit to be tried
Since the accused has been found unfit, the Court is required by s 47(1) to determine whether, on the balance of probabilities, during the 12 month period after the finding of unfitness, he may become fit to be tried or will not become fit to be tried.
A finding under s 47(1)(b), that an accused will not become fit, should only be made if there is a "real certainty" about his lack of fitness during the relevant 12-month period because the effect of such a finding is to exclude the MHRT from an assessment of the accused: R v Risi [2021] NSWSC 769 at [55].
Dr Nielssen regarded the accused's condition as permanent and thought that he was very unlikely to recover sufficiently within the next 12 months to be considered fit for trial.
Professor Greenberg regarded it as unlikely that in the next 12 months any intervention would ameliorate his current level of functioning and impairment. In this view, he was influenced by the chronicity of his presentation, with significant cognitive deficits, but also inconsistencies in other explanations for his presentation, such as 'learned helplessness' or malingering.
I find, on the probabilities, that the accused will not become fit to be tried in the period of 12 months from today's finding of (present) unfitness; a finding which the Crown and the Accused's Counsel concur in.
[9]
Conclusion
The Court finds that:
1. the accused is unfit to be tried on the offences the subject of the indictment;
2. on the balance of probabilities, in the 12 month period from today, the accused will not become fit to be tried for the said offences.
By reason of s 48, it follows that the Court will need to hold a special hearing under Pt 4, Div 3 of the Act. However, before holding a special hearing, the court must obtain advice from the DPP as to whether or not further proceedings will be taken: s 53(2).
The proceeding is listed for mention in the District Court at Parramatta before the List Judge on 21 January 2022.
Bail for the accused should continue on its current terms.
[10]
Endnotes
R v Presser (1958) VR 45; approved in Kesavarajah v The Queen (1994) 181 CLR 230
R v Presser (1958) VR 45
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Decision last updated: 17 December 2021