R v Dunne [2001] WASC 263

R v Dunne [2001] WASC 263 - WASC 2001 case summary — Zoe

[47]

"KEELEY, MR: All right. Well, let's come to subsection (e), unable to follow the course of trial. Did you discuss that with her? --- Yes, I did. I asked her, you know, whether she had the attention span, and from my observations of her, and she said, 'Yeah, I'll try hard,' and that was on 31 August. On another occasion she said, 'I can't concentrate. I think what might happen - I hope what's going to happen' - I asked her really about the roles of the various parties in the court. I asked her what a judge does in court and she said, 'He sentences you.' I asked her what her legal counsel would do for her and she said, 'He's on my side.' I asked her whose side is the judge on and she replied, 'The people's side, the people who give evidence from the hostels, from Sherwood Lodge,' and I had some - obviously had some reservations with that answer. On another occasion she says, 'Makes the final - the judge makes the final decision. I though he did' - and then there was a pause and then she said, I'm sorry.' When I educated her again - that was on 31 August - she said, 'I'm sorry. I see.'

MILLER J: You pointed out to her that the jury made the decision? --- Yes. I asked her about the role of the crown, the prosecutor, and on last night she stated, 'Oh, I forgot. He's on the jury's side. You have to excuse me. I've got a cold.' On 31 August I asked her about the prosecutor. She stated again, 'He's on the jury's side. Is that the judge?' I asked again on 30 August and she stated to the question, 'What does the crown do? What does the prosecutor do?' She said, 'I don't understand.' On each occasion I had educated her on the role of the prosecutor.

KEELEY, MR: What about her ability to instruct a lawyer and then, say, stick to those instructions during the course of a trial? -- I think that with a complex trial such as these charges might lead to, she would have great difficulty in instructing her legal counsel and the reason for that is her organic brain injury which is in addition to her fairly low IQ. She has an IQ, as I said, in the region of borderline to mild mental retardation. In addition she has the dementia-like process which is on top of that which makes her fairly childlike, suggestible, and doesn't really understand the complexities of a complex trial which might run over an extended period of time."

[53]

"The brain is a complex organ. I mean we all know that. And it's hierarchically organised and it's organised into regions. If I could be permitted to give an analogy, it's like a symphony orchestra. It has a string section, which might be the emotional circuits or pathways in the brain, it has a horn section, it has a woodwind section, and it mediates a whole lot of functions, motor function, sensation, memory, will, feelings, thoughts, all those sorts of things. But it has to have a conductor and the conductor is the frontal lobe part of the brain. I believe that this is Mrs Dunne's main problem, her main deficit, and renders her unable to stand trial, because when you don't have a conductor - firstly, two things can happen. In pathologies of the brain there can be an impairment of the conductor and no impairment to the rest of the brain. That's classic Pick's disease where the rest of the intellect is reasonably intact, certainly early on, but then it degenerates as well. So the person can actually have an intact intellect but not be able to coordinate everything so it's in concert because the conductor is faulty or not working very well. Or alternatively, the frontal lobes can be intact, and this is usually what happens - or reasonably intact as in intellectual disability, but the rest of the orchestra is faulty; it's not really able, hasn't got the ability in the string section, for example, to accurately reproduce what the conductor is wanting to be reproduced. The important thing is that it's the coordination of all those functions under the conductor's baton that allows a human being to have a full concerted, full appreciation of themselves and their relation to the world around them, that kind of thing. The frontal lobes - and this is what Dr Panegyres talks about in his report when he uses the word 'this executive syndrome.' These are called the executive functions of the brain. The frontal lobe functions, the conductor, are the executive functions of the brain and I believe they are the functions that have been mostly impaired in this case."

[78]

"... I particularly just really wanted to focus on what she had remembered and what she had gleaned about the last couple of days. I did ask her at the beginning what she understood to be her legal situation and she said, 'What do you mean?' and I said, 'What are we here for?' and she said, 'to see if I'm fit enough to stand trial.' I said, 'Whereabouts are we in that? How far in the proceedings are we?' and she said, 'I don't know' and I then had to simplify it for her again and she said, 'Are we near the beginning or the end,' and she thought correctly that we were near the end and then I just said to her in a fairly general question, 'What have you heard yesterday and today?' and she said, 'What do you mean?' and I said, 'Can you summarise for me what you've seen and what you've heard over the last 2 days?' She just said - I must add that there's always a very long delay before she answers, but then said, 'They showed the video and I got very upset,' and then she went off in a tangent to tell me what she'd got upset about ...

...

I said, 'Who gave evidence yesterday?' and she correctly identified that Prof Greenberg gave evidence. I said, 'What did he say?' and she said, 'He talked about me having Pick's disease, something wrong with the frontal of my head,' and then stopped and I said, 'Was there anything else said yesterday and today from Prof Greenberg?' and she said, 'Something about my behaviour, that I hit people and kick people.' I then said, 'Who asked questions?' and she said, 'I don't know,' and then I said, 'You saw them at the front,' and she, 'Those two men in black coats with white.' I said, 'Well, who are they?' and she said 'I Don't know.' I said, 'What do you think? Who do you think they might be - what do you think they might be doing there?' and she said, 'Just taking part in proceedings.'

...

Then I just quickly asked her a couple of questions, 'Did you hear anything over the last 2 days you disagreed with?' and she said, 'When that man said, "She's a murderer." '. I said, 'Which man?' and she identified one of the men in black and she said, 'Dr Greenberg disagreed. He said I didn't' do it.' Then I said, 'This is your final question. Have you got angry with anybody at any stage in the last 2 days and if you did' - firstly she said she hadn't been. Then I said, 'If you did, what would you do?' and she said, 'I wouldn't have done anything.' I said, 'Why would you not do anything in there if you got angry?' and she said 'It's in a very important place. I know how to behave myself in places like that.' "

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (84 paragraphs)

The evidence as to the condition of the accused

The evidence as to the accused's fitness to plead

Assessment of the accused's understanding of the fitness to plead proceedings

Parties

Legislation Cited (2)

Cases Cited (3)