R v Chute [2017] ACTSC 246

The applicant is unfit to plead within the meaning of s 311 of the Crimes Act 1900 (ACT) and will not become fit to plead within the next 12 months. Listed for a special hearing.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Fitness to plead - investigation into the fitness of the applicant - applicant has mild dementia and cognitive impairment - permanent and progressive condition - applicant not fit to plead - s 311 of the Crimes Act 1900 (ACT)

Crimes Act 1900 (ACT) div 13.2, ss 311, 315A, 315C, 316

Grieg v Dziubinski [2013] ACTSC 8

R v Hakim (1989) 41 A Crim R 372

R v Presser [1958] VicRp 9; [1958] VR 45

R v Sexton [2000] SASC 276; 77 SASR 405

1. The applicant has been charged that, while he was a brother at Marist College in Canberra, he indecently assaulted four students and committed buggery on one of those students.

2. The defence has raised the question of fitness to plead. The prosecution concedes that the applicant is not fit to plead.

3. The applicant is now 85 years old. He was born in 1932. He worked at Marist College, Canberra, from January 1976 until December 1993. During that period, he performed duties as a secondary school assistant and religious education co-ordinator. At one stage, he was responsible for Years 7 and 8. In about 1994, he retired. He now lives in an aged care facility.

4. In 2006, the applicant pleaded guilty to sexual assault offences. In 2008, he was sentenced to a total of six years' imprisonment, of which two years was to be served by way of full-time imprisonment and one year by way of periodic detention. The remaining three years' imprisonment was suspended. Those sentences have been served.

5. A person is presumed to be fit to plead. The presumption is rebutted only if it is established on an investigation under div 13.2 of the Crimes Act 1900 (ACT) (Crimes Act) that the person is unfit to plead.

6. Section 311 of the Crimes Act defines when a person is unfit to plead:

(1) A person is unfit to plead to a charge if the person's mental processes are disordered or impaired to the extent that the person cannot -

(b) enter a plea to the charge and exercise the right to challenge jurors or the jury; or

(c) understand that the proceeding is an inquiry about whether the person committed the offence; or

(e) understand the substantial effect of any evidence that may be given in support of the prosecution; or

(2) A person is not unfit to plead only because the person is suffering from memory loss.

This definition adopts the basic requirements for fitness to plead set out in R v Presser [1958] VicRp 9; [1958] VR 45 (Presser).

7. Section 315A of the Crimes Act prescribes the procedure on an investigation into a person's fitness to plead:

(1) On an investigation into a defendant's fitness to plead -

(a) the court must hear any relevant evidence and submissions put to the court by the prosecution or the defence; and

(b) if the court considers that it is in the interests of justice to do so, the court may -

(ii) require the defendant to be examined by a psychiatrist or other health practitioner; or

(iii) require the results of the examination to be put before the court.

(2) Before hearing any evidence or submissions, the court must consider whether, for the protection of the defendant's privacy, the court should be closed to the public while all or part of the evidence or submissions are heard.

(3) The court must decide whether the defendant is unfit to plead.

8. Pursuant to s 315A(2) of the Crimes Act, the parties agreed that, given the applicant's prior convictions, there was no point in closing the Court to the public. Further, the submissions on the fitness application were made in writing.

9. Although no submission was made to the contrary, pursuant to s 315A(3) the Court must decide whether the applicant is unfit to plead and, if so, whether he is likely to become fit to plead within the next 12 months. Section 315C of the Crimes Act provides:

315C Person found unfit to plead and unlikely to become fit to plead

If the court decides that the defendant is unfit to plead and is unlikely to become fit to plead within the next 12 months, the court must -

(i) discharge any jury empanelled for the proceeding; and

(ii) hold a special hearing under section 316; and

(b) for a proceeding in the Magistrates Court - conduct a hearing under section 335.

10. At common law, it is not necessary that a person be suffering from a mental illness in order for them to be unfit to plead: R v Hakim (1989) 41 A Crim R 372; R v Sexton [2000] SASC 276; 77 SASR 405; Grieg v Dziubinski [2013] ACTSC 8. Similarly, under the Crimes Act, physical disabilities may impair a person's memory and cognitive processes, or their hearing and speech may suffer to the extent that they cannot sufficiently understand or participate in proceedings or cannot communicate their thoughts or instructions, such that they are considered unfit to plead.

11. In 1985 or 1986, the applicant sustained a serious head injury in a motor vehicle accident. In 1995, he was diagnosed with ischaemic heart disease and other conditions.

12. An MRI performed in 2008 indicated that the applicant's brain substance had shrunk (i.e. he was suffering from cerebral atrophy). According to Dr Roberts, a consultant forensic psychiatrist who reported in 2007 and 2008, the MRI provided evidence of degenerative brain change. In 2010, the applicant was diagnosed with Parkinson's Disease, which was associated with significant memory impairment and cognitive defects.

13. In 2015, Mr Cipriani, a neuropsychologist, conducted a neurocognitive assessment, which showed impaired functioning. The findings were consistent with Parkinson's Disease and associated mild to moderate cognitive impairment. Mr Cipriani concluded that Parkinson's Disease was likely to progress to dementia "over the next several years".

14. In 2015, a mini mental state examination conducted by Dr Neilssen, a forensic psychiatrist, yielded results consistent with mild dementia. Dr Neilssen noted that the applicant was in supported accommodation and received assistance with mobility and health care. He found that the applicant had difficulty with short-term memory and was unable to provide an account of the evidence in the case, or describe how he might respond to the charges. According to Dr Neilssen, the applicant would be unable to follow the proceedings in a meaningful way, retain the details of evidence presented in the proceedings, or provide reliable instructions to his lawyers. He opined that the applicant was unfit to be tried. Dr Neilssen described dementia as a permanent, irreversible and progressive condition. He stated that the applicant was unlikely to become fit for trial within 12 months.

15. In 2015, Professor Greenberg, a forensic psychiatrist, examined the applicant on behalf of the prosecution. He found evidence of dementia. Professor Greenberg's findings were not as strong as those of Dr Neilssen. Nevertheless, Professor Greenberg said that, because of his memory impairment and cognitive condition, the applicant would have difficulty appreciating the substantial effect of evidence, recalling details and retaining information, and he may have difficulty instructing lawyers. Professor Greenberg considered it likely that the impairment was permanent and would not improve over the following 12 months.

16. In 2016, Dr Luo, a consultant geriatrician, reported that the applicant had mild dementia and associated slow cognitive decline.

17. In September 2016, Dr Wyeth, a consultant psychiatrist employed by the Forensic Mental Health Services ACT, conducted a cognitive examination of the applicant. Dr Wyeth obtained scores that were worse than those obtained by Professor Greenberg. She opined:

Mr Chute understood the roles of the courts, the purpose of the trial and roles of the various players. What I did find however is that his working memory, that is, the ability to learn, retain and recall new information is significantly impaired. If it were only that he could not recall the details of the offending at the time, this would not make for a finding of not fit to plead, but I do form the opinion that Mr Chute would not be able to follow the course of a trial due to his working memory impairment. I am of the opinion that he would not be able to retain the information that was presented in the court room even with reasonable provisions, for repeated prompting and assistance.

On these grounds, I find that Mr Chute is unfit to plead. Persons with cognitive impairment can be expected to wax and wane with their performance. I do understand on the day of our assessment, Mr Chute had to travel from Bexley in NSW and then manage a long interview with myself. I would attribute at least some of his significant worsening of his overall score when compared with the results recorded by Professor Greenberg to fatigue, however, this score does indicate a very significant and ongoing cognitive impairment. On this basis, I do find that he is unfit to plead. Furthermore, given that his dementia is progressive and there is no scope for recovery ... [h]e is not likely to become fit within 12 months.

(Emphasis in original)

18. On 12 February 2016, Acting Judge Garling of the District Court of NSW found that the applicant was not fit to be tried on three charges of indecent assault, relating to St Joseph's Marist Brothers school in Lismore and Penshurst Marist Brothers High School.

19. In June 2016, the NSW Mental Health Review Tribunal (the Tribunal) reviewed the applicant's fitness to be tried in NSW. The Tribunal decided that, because of his dementia, he did not meet the Presser criteria for fitness to be tried and that he would not become fit within the next 12 months. The Tribunal considered the reports of Dr Neilssen, Professor Greenberg and Mr Cipriani. It observed that: "Those reports were unanimous in determining Mr Chute has advancing dementia which is permanent and likely to continue to deteriorate, and that he is and will remain, unfit to stand trial."

20. This Court has before it the reports which caused the Tribunal to conclude that the applicant was unfit to be tried in NSW, where the Presser criteria apply. In addition, this Court has the report of Dr Wyeth.

21. The expert evidence clearly establishes that the applicant is unfit to plead within the meaning of s 311 of the Crimes Act and that he will not become fit to plead within the next 12 months.

22. The matter is listed before the Registrar for the purpose of appointing a date for a special hearing under s 316 of the Crimes Act.

I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell