R v Dunne [2001] WASC 263

Criminal Law (Mentally Impaired Defendants) Act 1996, s 9

R v Robson [2001] WADC 133

1 MILLER J: The accused is charged on indictment with two counts of wilful murder and one of attempted murder. The first count of wilful murder alleges that the accused wilfully murdered her son Anthony Michael Dunne at Lynwood on 28 March 1972. The second alleges that the accused wilfully murdered Robyn Gaye Swain at South Guildford on 6 September 1999. The charge of attempted murder alleges that the accused attempted unlawfully to kill Shirley Annette Wake at South Guildford on 5 December 1999.

2 The indictment was put to the accused on 1 May 2001 and upon the first count being read to her she pleaded not guilty. Counsel for the Crown, however, informed Roberts-Smith J that there was an issue of fitness to plead and it was therefore inappropriate to put any more of the indictment. Unfortunately, the accused's counsel was not present. Roberts-Smith J then indicated that he would not take the plea and would await the attendance of the accused's counsel. Counsel duly appeared and submitted that the accused was unfit to plead. The accused was remanded to Graylands Hospital under the provisions of s 5 of the Criminal Law (Mentally Impaired Defendants) Act 1996 ("the Act") pending the receipt by the Crown of a psychiatric assessment of the accused. After a number of other appearances the accused came before me on 5 September, on which day the question of the accused's mental fitness to stand trial was argued. The evidence of three psychiatrists was put before me on 5 and 6 September and submissions of counsel were made on 7 September. I then reserved my decision until today.

3 The question of an accused's mental fitness to stand trial is to be determined by a Judge alone. Section 12 of the Act provides that the presiding judicial officer is to decide the matter on the balance of probabilities after enquiring into the question and informing himself or herself in any way the judicial officer thinks fit.

4 Section 9 of the Act sets out the criteria which govern the question of mental fitness to stand trial:

A defendant is not mentally fit to stand trial for an offence if the defendant, because of mental impairment, is -

(a) unable to understand the nature of the charge;

(b) unable to understand the requirement to plead to the charge or the effect of a plea;

(c) unable to understand the purpose of a trial;

(d) unable to understand or exercise the right to challenge jurors;

(e) unable to follow the course of the trial;

(f) unable to understand the substantial effect of evidence presented by the prosecution in the trial; or

(g) unable to properly defend the charge.

"Mental impairment" is defined to mean "intellectual disability, mental illness, brain damage or senility".

5 Section 10 of the Act provides that an accused person is presumed to be mentally fit to stand trial until the contrary is found under the Act.

6 In Eastman v The Queen [2000] HCA 29; (2000) 74 ALJR 915, Callinan J traced the historical development of the well-established principles with respect to fitness to plead. His Honour said [at 399]:

"From very early times in England except for a period during the reign of Henry VIII [33 Hen VIII c 20] if a man committed a capital offence whilst of sound mind but became mad before arraignment he could not be arraigned for the crime. And as far back as pre-Norman times King Alfred hanged Cole, one of his judges because he judged Ive to death when he was a madman. [See Blackstone, Commentaries on the Laws of England (1803), vol V (bk IV) at pp 24-25; see also Holdsworth, A History of English Law, vol VIII at p 439]. The English courts also recognised that a defendant who did not plead could stand 'mute of malice' or mute 'by visitation of God'. [R v Schleter (1866) 10 Cox CC 409]. Procedural fairness in a criminal trial requires that the accused be aware of the nature of proceedings and be capable of participation in them in a fit state to defend himself. [Proceedings in the Case of John Frith for High Treason (1790) 22 Howell's State Trials 307 at 318].

7 Gleeson CJ (at [24] - [27]) pointed out that the mere existence of a mental disorder does not of itself prevent a person from being brought to trial. His Honour said:

"[24] Unfortunately, it is not unusual for the criminal justice system to have to deal with people with mental disorders; sometimes severe disorders. The existence of the disorder does not, of itself, prevent them from being brought to trial. It certainly does not mean that they must be allowed to be at liberty. It is not to be overlooked, as Deane and Dawson JJ pointed out in Kesavarajah v The Queen (1994) [1994] HCA 41; [181 CLR 230 at 249] that the usual consequence of a finding that a person is unfit to plead is indefinite incarceration without trial. It is ordinarily in the interests of an accused person to be brought to trial, rather than to suffer such incarceration.

[25] In the case of Berry [(1977) 66 Cr App R 156 at 158] Geoffrey Lane LJ, criticising a direction to a jury empanelled to determine an issue of fitness to plead, said:

'It may very well be that the jury may come to the conclusion that a defendant is highly abnormal, but a high degree of abnormality does not mean that the man is incapable of following a trial or giving evidence or instructing counsel and so on.'

[26] The Ontario Court of Appeal, in R v Taylor, [(1992) 77 CCC (3d) 551 at 564-565] recorded the following propositions, agreed by counsel, as representing the state of authority in that province:

'(a) 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 relates to the subject matter of the trial.

(b) The fact that a person suffers from a mental disorder which may cause him or her to conduct a defence in a manner which the court considers to be contrary to his or her best interests does not, of itself, lead to the conclusion that the person is unfit to stand trial.

(c) The fact that an accused person's mental disorder may produce behaviour which will disrupt the orderly flow of a trial does not render that person unfit to stand trial.

(d) The fact that a person's mental disorder prevents him or her from having an amicable, trusting relationship with counsel does not mean that the person is unfit to stand trial.

[27] In the present case, the ultimate test to be applied is the statutory test set out earlier. However, each of the above propositions is sound, and they are consistent with the statutory test."

8 The statutory test to which Gleeson CJ referred was that contained in s 68(3) of the Mental Health (Treatment and Care) Act 1994 (ACT) which contains a number of criteria very similar to those contained within s 9 of the Act.

9 Hayne J (at [298]) pointed out that at common law the tests were based upon an explanation given by Alderson B to a jury in R v Pritchard [1836] EngR 540; (1836) 7 Car & P 303:

[298] No doubt in deciding whether the accused may not be fit to plead or to stand trial, regard must be had to the relevant tests of fitness. As was pointed out by the majority in Kesavarajah v The Queen, [(1994) [1994] HCA 41; 181 CLR 230 at 245, per Mason CJ, Toohey and Gaudron JJ] at common law those tests were based on the explanation given by Alderson B to the jury in R v Pritchard [(1836) [1836] EngR 540; 7 Car & P 303 [173 ER 135]] and require the ability; (1) to understand the nature of the charge; (2) to plead to the charge and to exercise the right of challenge; (3) to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged; (4) to follow the course of the proceedings; (5) to understand the substantial effect of any evidence that may be given in support of the prosecution; and (6) to make a defence or answer the charge [See also Presser [1958] VicRp 9; [1958] VR 45 at 48, per Smith J]. Properly understood, these tests may not be very difficult to meet."

10 The tests contained within s 9 of the Act are clearly based upon the following passage from the judgment of Smith J in R v Presser [1958] VicRp 9; [1958] VR 45 at 48:

"... to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand ... the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is ... [H]e must ... have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any."

11 This passage was approved by the High Court in Nagatayi v The Queen [1980] HCA 18; (1980) 147 CLR 1. In that case, the Court was concerned with s 631 of the Criminal Code, which has since been repealed and effectively replaced by the provisions of s 9 of the Act. Section 631 of the Code formulated the question of fitness to plead in terms of a capacity to understand the proceedings at trial and must be considered in that light. The observations of the majority are, however, generally relevant to the present application. Gibbs, Mason and Wilson JJ (at 8) said:

"The test looks to the capacity of the accused to understand the proceedings, but complete understanding may require intelligence of quite a high order, particularly in cases where intricate legal questions arise. It is notorious that many crimes are committed by persons of low intelligence, but it has never been thought that a person can escape trial simply by showing that he is of low intelligence. We respectfully agree with the view expressed by Smith J in Reg v Presser that the test needs to be applied 'in a reasonable and commonsense fashion'.

...

The view that the accused need not have sufficient capacity to make an able defence, or to act wisely or in his own best interest, is accepted also in English cases such as Reg v Robertson and Reg v Berry, and accords with common sense."

"The section does not mean that an accused can only be tried if he is capable, unaided, of understanding the proceedings so as to be able to make a proper defence. This is self-evident when the incapacity to understand the proceedings is due to an inability to understand the language in which the proceedings are conducted. In such a case, if an interpreter is available the incapacity is removed. Similarly, in deciding whether an accused is capable of understanding the proceedings so as to be able to make a proper defence it is relevant that he is defended by counsel. If the accused is able to understand the evidence, and to instruct his counsel as to the facts of the case, no unfairness or injustice will generally be occasioned by the fact that the accused does not know, and cannot understand, the law."

In the present case the accused will be defended by counsel. She is represented by Legal Aid.

13 The various psychiatrists called to give evidence in the present case were agreed that the accused would be able to understand the nature of the charge; able to understand the requirement to plead to the charge; able to understand the purpose of the trial; and able to understand or exercise the right to challenge jurors. Two of the psychiatrists were of the view that the accused's knowledge in this regard could only be said to be rudimentary, but there is no issue in relation to the first four tests contained within s 9. What is in issue is whether the accused can meet the criteria of s 9(e), s 9(f) and s 9(g), namely, whether she would be able to follow the course of the trial; able to understand the substantial effect of evidence presented by the prosecution in the trial; and able to properly defend the charge. It is only necessary to show that the accused, because of mental impairment, is unable to do any one of those things for her to be declared unfit to plead.

14 The provisions of s 9(e), s 9(f) and s 9(g) must be read in the context of the statements to which I have referred in Eastman v The Queen (supra) and Ngatayi v The Queen (supra). It is the ability of the accused to follow the course of the trial, understand the substantial effect of the evidence presented by the prosecution and/or properly defend the charge assisted by counsel which are the relevant questions. The accused does not have to understand the evidence in detail, nor does she have to understand the law and its application to the facts of the case.

The evidence as to the condition of the accused

15 The evidence establishes clearly that the accused suffers from a mental impairment within the meaning of the Act. She has intellectual disability, mental illness and brain damage. Professor David M Greenberg, Chair and Professor of Forensic Psychiatry at the University of Western Australia is of the opinion that the accused has all three of these disabilities. In a report dated 9 March 2001 he summed it up in this way:

"Mrs Dunne has pre-existing intellectual impairments (borderline intelligence). In addition to this impairment, she now has evidence of frontal-temporal lobe degeneration, which is evidence on her CT scan, MRI scan and SPEC study. She has evidence of marked atrophy (shrinkage) of these areas of the brain. This has affected her memory and her ability to cognitively function. In addition she complains of depressive symptomatology and often has paranoid symptoms, which appear to be overvalued ideas, rather than mood incongruent fixed delusions. Her personality characteristics are somewhat childlike and her dependent behaviour is evidence in her social interactions. She tends to be impulsive, attention seeking and has outbursts of seemingly unprovoked aggression."

16 Professor Greenberg adopted the neurological assessment of Dr Peter K Panegyres which was contained in a report dated 30 May 2000 to the following effect:

"Dr Panegyres reported that she had problems with frontal temporal degeneration. The neurologist reported that she has frontal lobe syndrome with abulia (reduced impulse to act and think, associated with indifference about consequences of action; associated with neurological deficit) dys-executive syndrome, impaired cognition and violent behaviour. His differential diagnosis was Picks Disease, Frontal Temporal Atrophy, and Corticobasal Ganglionic Degeneration or a form of frontal lobe atrophy associated with motor-neurone disease."

17 The accused's treating psychiatrist since her admission as an in-patient at the Frankland Centre, Graylands Hospital on 30 December 1999 has been Dr Steven J R Patchett, Director of Forensic In-patient and Community Psychiatric Services at Graylands. He too accepted the view of Dr Panegyres, referring to that doctor's conclusions in a report of 30 May 2000 to the following effect:

"There is suspicious clinical evidence for the presence of an underlying frontal lobe syndrome. This is supported by the MR scan which shows unequivocal frontal and temporal lobe atrophy. The brain SPECT scan is confirmatory of a frontal and temporal hypo perfusion as are the previous CT scans of February 2000 and in May 1998.

The difficulty in this patient relates to the effects of repeated overdose and her premorbid functioning. The impression I have from reading her case record, is that there may have been longstanding cognitive deficits and it is possible that there may be a frontal lobe dysfunctioning from a disorder in early life. It is also possible that she has unique fronto-temporal degeneration of which Pick's disease is only one possibility. The other possibilities include a unique fronto-temporal atrophy, cortico-basal ganglionic degeneration or a form of frontal lobe atrophy associated with Motor Neurone disease. It is not possible to segregate these aetiologies on clinical criteria alone."

18 Dr Zdenek Srna, a consultant psychiatrist who was retained by the Crown to express an opinion in this case, is of the opinion that the accused suffers from schizo-affective disorder. In his evidence he put it this way:

"Now, my diagnosis in this case is, just for the record and to make it more complex - I apologise, your Honour, but just to be precise in terms of diagnosis, I think it is in fact schizo-affective disorder which is a cross between schizophrenia and major depressive disorder.

Schizo-affective disorder? --- Schizo-affective disorder. Now, this woman had numerous admissions for severe depression with psychotic features, voices, delusions. She thought that her husband was having affairs with her doctor, with the nursing staff. She thought people were out to kill her. She had what we call nihilistic delusions or motivation at least. She was saying she wants to go to prison because she had done something bad in the past, and that's noted well in 1974. So certainly there is a significant affective component and I don't think one can ignore it in diagnosis.

...

Yes. Now, there's evidence that she has got the shrinkage of the frontal lobe, marked atrophy? --- Sure. And I have ample evidence here, your Honour."

19 It is therefore clear from the evidence that the accused suffers mental impairment by way of intellectual disability, mental illness and brain damage. The precise diagnosis of that mental impairment is a matter in issue between the experts who have been called, but on balance I would favour the views of Professor Greenberg and Dr Patchett, which adopt the diagnosis of Dr Panegyres.

The evidence as to the accused's fitness to plead

20 In his report of 9 March 2001 Professor Greenberg expressed the following view of the accused's mental fitness to stand trial.

"Mrs Dunne is able to understand the nature of the charges she is presently facing. In rudimentary terms she is able to understand the requirement of how to plead to the charge, but does not in my opinion, fully understand the substantial affect of such a plea.

In rudimentary terms she is able to understand the purpose of the trial. Given the complexities of her present legal charges she is not able to fully understand and exercise the right to challenge to jurors. Mrs Dunne has cognitive deficits, which would make it difficult for her to follow the course of the trial, and understand the substantial affect of evidence to be presented by the prosecution at the trial.

Mrs Dunne gives ambivalent and conflicting accounts of her behaviour during the time period surrounding the alleged offences, and would have difficulty giving lucid instructions from sound memory of her own behaviour in March 1972, September 1999 and December 1999. She is able in a rudimentary fashion, to give an unreliable account of herself during these time periods."

21 In the course of his evidence Professor Greenberg modified his views in relation to s 9(a) to s 9(d) in the following way:

"KEELEY, MR: So are you saying that there was a consistent thread in her understanding, however rudimentary it might have been? --- I think it's rudimentary, yes. I think the criteria, certainly criteria (a), (b), (c) and (d) - she could, in rudimentary terms, understand those criteria."

"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."

23 When told that the trial might last five to 10 days with sitting hours of approximately two and a half hours in the morning and two hours in the afternoon, the Professor said:

"I think she would have difficulty integrating the proceedings of the court, the process of the court, over that period of time given the complexity of the matter based on the fact that she has mild mental retardation and in addition has a degenerative process which doesn't allow her to integrate new knowledge into her thinking, into her memory, so she has marked organic evidence of dysfunction."

24 The Professor added in relation to par (e), par (f) and par (g):

"Her intellectual and cognitive functioning is impaired and with some of the rudimentary criteria, as I said, certainly with (a), (b), (c), partially there was a rudimentary understanding. Certainly with (e) and (f) and most likely (g) there wasn't. With (g) she tends to - it would really be dependent on the length and the complexity of the trial, and given that there's three serious charges, I think she would have great difficulty.

In terms of (g), what about her capacity to go into the witness box if called by the defence to give evidence? What would be her capacity to actually sit where you are and take an oath and give an account of events? --- I think that with some of the criteria she could respond, as she did to me, in a fairly rudimentary way that she understood those criteria and I think her answers would be plausible, that she did understand. But I think, as I said, with some of the criteria, they're more to do with process rather than actual one isolated incident in time; in other words, when you ask her the question. Whether she can actually process that over a period of time is in fact the crucial issue in my mind with this particular individual."

25 Dr Patchett described the accused's problems with mental functioning in the following terms:

"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."

26 Dr Patchett was in the special position of being the accused's treating psychiatrist. He had the opportunity of speaking with her late on the afternoon of the first day of the fitness to plead enquiry. He recounted to the court what happened:

"In fact if I could just add, because I'm responsible for Mrs Dunne's care, she was upset yesterday afternoon. I spoke to her and then I spoke to her yesterday afternoon after the courtroom appearance. She has very little understanding of what happened yesterday. She is unable really - she thought she was going to be found guilty of murder yesterday. She didn't really have an appreciation that yesterday's inquiry was a fitness to stand trial inquiry."

27 Dr Patchett was cross-examined about the accused's capacity to withstand what the Crown termed a three hour, 20 minute police interrogation recorded by video. In point of fact, the interview, which I have seen, is not properly categorised as an interrogation. The accused was interviewed by a female police officer who treated her extremely kindly and gently. This was in contradistinction to many police interviews recorded on video. It was no doubt due to an appreciation on the part of the police officers that the accused suffered from a mental impairment. When it was put to Dr Patchett the accused had withstood the long process of interview without any apparent difficulty, he said:

"She can give isolated memories and responses to a line of inquiry, for example, that seems quite consistent and quite reasonable, but, but I believe she is not really processing that, she is not really doing that in concert with the other aspects that make a human being and make a human intellect. The emotional flavouring to it, for example, the impulses and wills that would be driven by that kind of a thought, they're not all happening in concert and what we are seeing is just isolated, not totally isolated, but relatively isolated part functions of somebody's mind, which I don't think is that impaired."

28 Dr Srna's view of the criteria contained within s 9 of the Act was expressed in this report of 24 August 2001 in the following terms:

"The assessment of fitness to stand trial under Section 9 of the Criminal Law (Mentally Impaired Defendants) revealed that Ms Dunne is psychiatrically fit to able to understand the nature of the charge, able to understand the requirement to plead to the charge and the effect of a plea, able to understand the purpose of the trial, able to understand or exercise the right to challenge the jurors, able to follow the course of the trial, able to understand the substantial effect of evidence presented by the Prosecution in the trial and able to properly defend the charge."

29 In his oral testimony Dr Srna elaborated upon this in the following way:

"I believe that she is able to follow the course of a trial.

And why do you say that? Based on what? --- I can base it on the fact that this woman has gone through numerous interviews with various doctors, with police. She has been sitting here for the second day in a row. I have noticed her - I mean, she is watching me now as I speak and she's listening to what I'm saying. She does understand; she takes things in. She appears not to sometimes because of the bluntness of her effect but I'm convinced that she does because when one asks her to interact she does. When I have warned her about aspects of my assessment she very clearly gave me feedback in saying 'Yes, I know that you are going to pass this information on to the prosecution,' etcetera, etcetera. She had a very good understanding of what was happening.

...

I guess no-one can say with sort of a hundred per cent how this woman is going to be in a 10-day trial but I think if one takes the test of beyond reasonable doubt, I have no hesitation to say that this woman would okay because so far there has been no evidence that in a similar situation she would have acted out her aggression, would have not been able to pay attention, etcetera, etcetera. Your Honour perhaps will realise after 3 and a half hours of the video that - you know, it's a tremendous task to actually concentrate and I was sort of very tired after having just watched the video. So it's really - this sort of experience - for that one needs a level of sophistication and ability to pay attention and to reply to questions, etcetera, ...

...

Which I think then brings us to the last of the criteria, 'Unable to properly defend the charge.' Is she in a position to give a set of instructions to her lawyer and to maintain those instructions over a 5 to 10-day period? --- I think the same applies as in the (f) criteria. I cannot say with 100 per cent but beyond reasonable doubt I would certainly say, yes, she is."

30 It is unnecessary for me to refer in any detail to the content of the video record of interview. It is sufficient to relate what the accused had to say in relation to the caution she was given and what she said in relation to each of the alleged killings and attempt to kill respectively.

31 The police officer interviewing the accused explained carefully to her what was involved in a caution. The accused was asked to recount what it was that she had been told about the caution. She said:

Q: Okay. So could you tell me in your own words what I actually said to you?

A: You said I wasn't -- I didn't have to talk to you if I didn't want to.

Q: That's right.

A: And anything that I said would be recorded on the tape --

Q: Yep.

A: -- and, you know, could be given in evidence in court.

Q: Yeah. That's right. And do you know --you know -- do you understand what I meant with -- I mean by 'evidence in court'?

Q: No I don't understand.

Q: Okay. Basically what that is when a person gets charged for something --

A: Yeah.

Q: --if they participate in a video record of interview like this the video tape actually gets presented to the court.

A: Yeah.

Q: And when it goes to court they have a trial or a hearing and what happens then is that the video tape actually gets played in court.

A: So you hear --- the person hears it.

Q: Yep.

A: Oh, I see."

32 In relation to the death of the child, she said:

"A: Again when Anthony was 4-1/2 months old, I found it dead in the cot.

Q: Oh, right.

A: They said it was a cot death but I smothered him, too.

Q: Oh, okay. All right. Can you remember the day that it happened?

A: It--it--it was on a Monday, I think.

Q: And why do you know it was on Monday?

A: Well, I always used to do the washing on a Monday."

"Q: Right. Okay. You said you put the pillow over Anthony's face. Why did you do that?

A: Don't know.

Q: Can you tell me what you were feeling at the time?

A: I think I was suffering a bit of post-natal depression."

34 In relation to the alleged wilful murder, the subject of count 2 on the indictment, the accused said:

"Q: Okay. And what did you do when you got into the room?

A: Put the pillow over her face.

Q: And what happened?

A: Just held -- just held it down. Just kept on holding it down.

Q: Okay. And about how long did you have it held down for?

A: A long time.

...

Q: Okay. And what did you think would happen when you held the pillow over Robyn's face?

A: I don't know. Just don't know.

Q: Well, you said that you smothered it. Did you think that she could die?

A: No, I didn't think about what -- what -- when -- when Les found her and he said that there -- that there was an emergency, and then when Connie came and said that she was dead, I was glad.

Q: Okay. And why were you glad?

A: I was hoping that she was dead."

35 In relation to the alleged attempted killing, the accused said:

"A: She had her face -- she was lying on her side but she had her face went around that way. So I managed to get the pillow over her --

Q: Right, and in what way was she struggling?

A: She was going like this and like this, and she was crying, and then she was shouting out, 'Les, Les, Les, Les,' and then Les rushed in and he saw me with the -- standing there with a pillow over her face and he told me to get out.

...

Q: Okay. Now, what do you think would have happened to Shirley?

A: If Les hadn't have walked in she probably would have died.

Q: How would you have felt then?

A: I don't know, awful, I guess.

Q: Do you think it was the right thing to do?

A: No.

Q: And why not? Why shouldn't you have done what you did?

A: Because that's how some people die.

Q: Because what, sorry?

A: That's how some people die.

Q: Yes, and is it against the law to try and --

A: It's against the law.

Q: To kill someone."

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

36 At my request the three psychiatrists spoke with the accused toward the end of the second day of the fitness to plead hearing. They did so at approximately 3.10pm on that day. The purpose of the exercise was to ascertain the extent to which the accused had been able to follow the course of the proceedings during the two days that had elapsed and also to understand the substantial effect of the evidence which had been presented.

37 Dr Srna was the first of the psychiatrists to report. He said:

"... I'm actually satisfied that this woman is able to follow the course of a trial based on the fact that she was able to reflect roughly - I mean obviously we didn't have time to assess her fully about what actually happened in the courtroom but she essentially was able to reflect that she sort of sat through, that she was upset when she was watching the video because of the children. She said that she was hoping that she would go to a community outside of Graylands Hospital after the course of the trial. She knew that this sitting was to decide in a court whether unfit to plead or not. When she was asked, 'What is fitness,' she said, 'Whether I'm fit to speak for myself."

Professor Greenberg responded in the following way:

"However, I did ask Mrs Dunne what was the purpose of the 2 days in court, what was the purpose of the hearing, and she initially stated that it was mainly showing the video, talking to the sergeant, the officer, 'I got up, try and decide if I'm fit or not.' To me, I understood from that that she had heard that this was a hearing of fitness and she was rote memory; she was repeating what was said to her. Later on I asked her what the gist of my evidence was, was I saying she was fit or unfit, and she said that I was saying she was fit. I asked her what Dr Patchett was saying, what was the gist of her evidence, and she said that she felt he was saying that she was unfit.

I asked her what Dr Srna was saying, the gist of his evidence, and she felt that she was - did you write that down - fit. So - sorry. So she said - if I can correct myself. She felt I was saying she was fit. Is that correct? That Dr Patchett was saying she was unfit and Dr Srna was saying she was fit. To me I think that really sums up whether she's actually able to understand present context in terms of the future. She was asked about the roles of the various parties to determine whether she could meaningfully participate in the trial and she did understand in rudimentary terms of what a judge does, what a lawyer does, what a witness does and she had some difficulty with the role of the prosecutor. Dr Srna did re-ask her the question and asked her, 'Who lays blame?' and she said, 'Isn't the judge the prosecutor?"

"... 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.' "

39 In the end, none of the experts were prepared to vary the conclusions they had earlier reached in relation to the accused's capacities under s 9(e), s 9(f) and s 9(g).

40 On the totality of the evidence before me, including my own observations of the accused in the dock, over a period of just over two days, I reached the conclusion that the accused would be able to follow the course of a trial; would be able to understand the substantial effect of the evidence presented by the prosecution; and would be able properly to defend the charges which are contained within the indictment. I respect the views of Professor Greenberg and Dr Patchett in relation to these matters, but I think each of those doctors looked at the three criteria in absolute terms. As Gibbs, Mason and Wilson JJ pointed out in Ngatayi v The Queen, it is not necessary that the accused person have a complete understanding of the course of the trial and the evidence presented by the prosecution. What is required is an ability to follow the course of the trial and understand the substantial effect of the evidence. Likewise, although s 9 requires that the accused be able to properly defend the charge, it does not require that the accused should know or understand the law. Nor does it require, where the accused is represented by counsel, that she alone must be able to mount a defence.

41 In this case the accused has demonstrated a capacity to follow the course of the fitness to plead proceedings and to understand in general terms what has been happening and what the evidence has been. In particular, she understood the import of the video record of interview, segments of which were shown. Although she personally would be quite unable to properly defend the charge she has counsel from Legal Aid to assist her. All that is required is that she be capable of instructing her counsel as to the facts of the case. In this regard she has given a number of conflicting accounts of what occurred. She has confessed on the one hand, but withdrawn the confession on the other. She has confessed to the killing of the child (count 1) and to the killing of the adult (count 2) and then withdrawn each of those confessions. She appears, however, to have been constant in her confessions in relation to the alleged attempt to kill (count 3).

42 The accused's long-term memory has been demonstrated from the video record of interview to be largely intact. She can recall events that occurred many years ago in England and in Australia. In particular, she was able to recall the facts and circumstances surrounding the death of the child, which is the subject of count 1. Likewise, in relation to counts 2 and 3, she was able to recount the surrounding facts and circumstances.

43 It was also clear from the accused's comments to the doctors who interviewed her in the detention area on the second day of the hearing, that she understood some of the ramifications of the video record of interview. In my view, the accused will be able to instruct counsel in relation to the admissions she has made on that video. As I have pointed out, it is not necessary that she knows or understands the law or the legal effect of her admissions. She needs only to be able to instruct her counsel whether what she said was truthful or untruthful. It will be for her counsel to formulate the defences (if any) that are open to the accused.

44 The conclusion I therefore reach is that the accused is a person who suffers from a mental impairment, but that mental impairment is not such as to render her unable to meet any one of the requirements of s 9(2) to s 9(f). That conclusion I reach on the balance of probabilities, accepting that in a case where fitness to plead is in issue, the gravity of the issue to be determined is a relevant factor in the application of the standard of proof: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.