R v Dunne [2002] WASC 196

R v Robson [2001] WADC 133

Velevski v The Queen [2002] HCA 4

1 ROBERTS-SMITH J: This is a continuation of a hearing to determine the fitness of the accused, Patricia Maureen Dunne, to plead to charges on two indictments, both dated 2 April 2002. The first presents her on a charge that on 28 March 1972 at Lynwood she wilfully murdered Anthony Michael Dunne who, I add, was at the time her infant child. The second presents her on two counts, the first being that on or about 6 September 1999 at South Guildford she wilfully murdered Robyn Gaye Swain, and secondly that on 5 December that year at South Guildford she attempted unlawfully to kill Shirley Annette Wake.

2 I have heard evidence over some two and a half days and the matter was listed today for submissions by counsel. When the hearing commenced today Mr Bates who represents the Crown informed me that the evidence having been heard and tested, the Crown was conceding that the accused was not fit to plead. Of course, as counsel recognise and have mentioned, notwithstanding that concession by the Crown it is still a matter for me to determine whether or not the accused is fit to plead to these indictments although the concession made by the Crown must inevitably be an extremely weighty matter in my consideration of that question. Likewise, as Mr Bates has said, it is not just a question of the capacities of the accused or the lack of them, but one which involves a consideration of her capacities applied in a reasonable and commonsense fashion to the circumstances of the particular case, including the nature of the charges and the evidence to be called.

3 This is the second such application to have been made in relation to these charges. The first was made before Miller J on a single indictment but containing all three counts and his Honour having heard evidence from expert witnesses handed down his judgment on that application on 27 September 2001, (R v Dunne (2001) WASC 263). His Honour concluded the accused is a person who suffers from a mental impairment but that, in his Honour's assessment at that time, was not such as to render her unable to meet any one of the requirements of s 9(2) of the Criminal Law (Mentally Impaired Defendants) Act 1996 ("the Act"), and that consequently the accused was fit to plead.

4 Section 11 of the Act expressly contemplates more than one such application being made during the course of a trial. This is therefore in no sense an appeal nor a review of the decision made by Miller J. I am required to make a fresh assessment and determination of the accused's fitness to plead having regard to the evidence before me, which is different and more extensive than that which was before his Honour.

5 Following the determination by Miller J on 27 September last year the accused was remanded for trial. The present application was made orally before McLure J on 22 March 2002 (see p 244 of the transcript). As at 22 March there were conflicting psychiatric reports before the court. Drs Patchett and Greenberg were of the opinion the accused suffers and suffered from serious incapacities which went to her inability to plead within the context of the requirements of the section. Dr Srna was of the opinion that she was fit to plead.

6 On 22 March 2002 McLure J ordered, pursuant to s 12 of the Act, that the accused be examined by another psychiatrist and a further report be provided to the court and made available to the parties by that psychiatrist. That report was subsequently provided by Dr James Alan Wood.

7 The matter was heard before me on 29, 30 and 31 July this year and as I said, I have heard final submissions today.

8 The primary evidentiary materials before me include the following expert reports:

(1) those of Dr Steven Patchett dated 4 September 2001 and 24 June 2002;

(2) those of Dr Peter Panegyres dated 30 May 2000 and 3 April 2002;

(3) those of Dr Carmela Connor dated 4 September 2000 and 27 March 2002;

(4) those of Dr Zdenek Srna dated 24 August 2001, 8 April 2002 and 26 July 2002; and

9 In addition, I have had regard to the report of Professor David Greenberg dated 9 March 2001 provided for the hearing before Miller J. Drs Patchett, Srna and Wood are psychiatrists. Dr Panegyres is a neurologist. Dr Connor is a senior clinical psychologist. Each of them also gave oral evidence.

10 Drs Patchett and Wood are both of the opinion that the accused suffers from frontal and temporal lobe dementia, which is inevitably deteriorating, that she lacks certain of the capacities identified in s 9 of the Act, and that she is not fit to plead. Dr Connor quite properly expresses no psychiatric diagnosis but says that the psychological tests administered by her to the accused show significant and deteriorating impairment of a number of capacities relevant to the criteria in s 9 of the Act.

11 Dr Srna's opinion currently is that the accused does not suffer from dementia but, rather, a schizo-affective disorder which may improve with new medication and proper treatment and that she is fit to plead. I say that is currently his opinion because it was not so as expressed in his report of August 2001, although he had reached it by the time he came to give evidence before Miller J in September 2001.

12 The conclusion which Dr Srna reached in his report dated 24 August 2001 was that the accused had a borderline IQ and possible mild mental retardation, with a history of maladaptive behaviour, impulse-driven aggression and violent and antisocial traits, dependent traits, and some impairment of sound social judgment.

13 He expressly concluded at that time that there was no evidence of any major psychotic illness but there was evidence of a significant affective disorder, namely major depressive disorder. He considered there was not sufficient evidence for a diagnosis of dementia as per DSM-IV criteria because he said her behaviour remained fairly fluctuating yet consistent and had been for a period of at least 13 years. He said the fronto-temporal atrophy was in his view most likely a result of peri-natal process rather than recent dementing illness. He concluded:

"She is institutionalised and essentially learned that aggression and violence is an effective mode in achieving primary and secondary goal gratification."

14 As I say, that assessment had changed somewhat by the time he gave evidence, although his conclusion still remained that she was in his view fit to plead.

15 It must be acknowledged at once that matters about which there is a difference of expert opinion are not to be determined simply on the basis of the majority expert view and I do not do so here. Secondly, the opinions of experts, even though expressed in terms of the ultimate issue, are still only evidence which I am required to take into account, critically examine and give such weight to as I consider appropriate in making my determination whether the accused is or is not fit to plead.

16 The statutory framework and the legal principles which are to be applied on an application of this kind were set out in detail by Miller J. I respectfully agree entirely with his analysis and statement of them and I expressly adopt them.

17 So far as the evidence is concerned, I accept that of Dr Patchett and Dr Wood that the accused suffers from dementia. I accept the onset of that dates from not earlier than 1995. I accept the evidence of Drs Patchettt and Panegyres that the Manchester-Lund criteria are an internationally recognised standard for the diagnosis of dementia and I think it abundantly clear on the evidence that the accused meets the majority of them. I say that bearing in mind that not all the criteria have to be met for a diagnosis of dementia to be made.

18 Dr Srna did have a number of interviews and examinations with the accused but was not in a position to confirm the objective accuracy of the answers she gave him. I consider that a serious difficulty and that on a number of occasions the things she has said to him and to other people were not correct.

19 I do not suggest she was telling them lies, simply that she has a tendency as a result of her condition to say things which are objectively not true and at times are even mutually inconsistent. Beyond that Dr Srna relied upon an examination of the accused's documentary treatment records.

20 Dr Patchett is the accused's treating psychiatrist and his assessment of her condition is based on his very close observation of her over some 30 months. I accept his evidence. I consider it is supported by the evidence of Dr Panegyres and Dr O'Connor. Dr Wood essentially comes to a similar conclusion. The diagnosis of fronto-temporal lobe dementia is also consistent with the application of Foulds Hierarchy which states that where the symptoms or features indicate more than one possible diagnosis, the correct one is that higher in the hierarchy. Organic disorders such as frontal or temporal lobe disorders are higher in the hierarchy than functional disorders of which schizo-affective disorder (from which Dr Srna considers the accused suffers) is one.

21 The chart prepared by Dr Srna to demonstrate the inconsistency of the diagnosis of dementia with the deterioration of the accused's assessed IQ (exhibit P4), in fact does not show such inconsistency. It was based on the assumption the onset of the accused's condition was in 1973 and the evidence that the longest a patient has been known to live following a diagnosis of dementia is 15 years. His suggestion was that if the accused had been suffering from dementia since 1973 she would no longer be alive. The suggestion is obviously met by the opinion, which I accept, that the onset of the accused's dementia did not occur until 1995 at the earliest.

22 The particular importance of the diagnosis, I think, lies in the nature and prognosis of the condition which the disorder produces in the accused. I accept the evidence that dementia is irreversible and inevitably deteriorating.

23 I also accept Dr Patchett's evidence as to his opinion of the accused's incapacities, particularly at pages 330 to 333 of the transcript .

24 Dr Connor's evidence was that psychological tests administered by her revealed marked deterioration in the accused's mental capacities, that she had a deficit of memory for new events and that cognitively she was quite impaired. In Dr Connor's opinion the accused is not capable of following the course of a trial. I will not now, in the circumstances, elaborate further here on her evidence. Suffice to say I accept it and I give it considerable weight as going to the capacities identified in s 9 of the Act. I do refer in particular to those parts of her evidence which were identified and referred to by Mr Bates at pages 303 and 310 of the transcript.

25 Dr Wood focused almost entirely on the accused's disabilities and functioning, not her aetiology. I consider his evidence was telling and reinforced that of Dr Patchett and Dr Connor in terms of the serious functional deficits of the accused. I accept his evidence and I am satisfied on the balance of probabilities that by reason of her mental impairment the accused is suggestible, likely to be uncritically compliant, likely to give irrational answers and even mutually inconsistent answers without any appreciation of the inconsistency, likely to confabulate, is incapable of having more than an extremely rudimentary but even then patchy and incomplete comprehension of the trial process and probably no real capacity at all to understand the substantial effect of the prosecution evidence even in its most simple aspects. There was reinforcement for these conclusions to be found in Prof Greenberg's report quite apart from the evidence of Dr Patchett.

26 I accept Dr Wood's opinion that the accused possibly could give an account of relevant events to her counsel but the reliability of that account would be problematic in the extreme, as would her capacity to adhere to it when subjected to pressure or suggestion. As he expressed it, her brain functioning is not adequate to give a consistent account nor to understand the trial process as a meaningful entity. With all due respect to his professional expertise, I do think Dr Srna fell into the trap, as it was described by Ms Archer, explained by Dr Patchett at page 315 of the transcript.

27 There, he was referring to witnesses who had given evidence previously and he made the following comment:

"... we have heard so far from two witnesses earlier that there are problems with a one-off or an isolated interview with Mrs Dunne in the sense that I believe you don't actually obtain the full picture and it's necessary to see her time and time again, I believe, to form an accurate impression of what's actually happening.

Why is that? Why can't you get an accurate impression just from a couple of visits?---Because as we've seen and we have heard reported, she can actually present reasonably well. She finds the novelty of a new experience quite arousing for her and she can kind of pull herself together. We've also heard and we certainly observe that her long-term memory function isn't grossly impaired. She can tell you all about her marriage and the earlier stages of bringing up her four children and the immigration from England to Australia, so that superficially - and I will add that superficially as well, she can be quite engaging, socially engaging, but I believe that that gives a superficial and artificial impression of Mrs Dunne's true mental state."

28 In my view the evidence generally shows the accused's condition has deteriorated markedly since the time of her arrest and the police record of interview and, indeed, since the hearing before Miller J. The evidentiary and other matters detailed both by the Crown and Ms Archer today, which I do not need to repeat now, were I think accurately and fairly stated by them and I accept them.

29 I am satisfied that by reason of her mental impairment, namely fronto-temporal lobe dementia, in terms of s 9 of the Act, and even with the assistance of competent counsel and instructing solicitor, the accused is probably unable - and I put this in terms of the various subparagraphs of the Act to:

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

(f) understand the substantially effective evidence presented by the prosecution in the trial; and

30 I am further satisfied on the balance of probabilities that the accused will not become mentally fit to stand trial within the next 6 months and accordingly by s 19(1)(a) I must make an order under s 19(4) of the Act quashing the indictment in each instance, without deciding the guilt or innocence of the accused, and either make an order releasing her or making a custody order in respect of her.

31 I have heard submissions from counsel as to the orders which ought to be made. The statutory penalty for wilful murder and attempted murder is obviously imprisonment. That is the first requirement or criterion. I would incline to accept Ms Archer's submission that there could well be serious difficulties in the way of the prosecution case, particularly in respect of the indictment containing the count of wilfully murdering Anthony Michael Dunne to the extent that appears to rely almost entirely on alleged admissions by the accused which are probably likely to be quite unreliable and as to which there is further evidence from Dr Hilton which would cast, I think, some serious doubt on the cause of death and the circumstances of it in any event.

32 I also incline to accept to some extent Ms Archer's submissions in relation to the second indictment although I note from Mr Bates' submissions and the content of the prosecution brief that obviously the evidence in relation to those two counts would be substantially different, although again relying to some extent on alleged admissions by the accused. There may well be, I think, serious difficulties in the way of the Crown in respect of those two counts but in any event that goes to only one of the criteria in subs (5) of the Act. Subsection (5) provides as follows:

"(a) the strength of the evidence against the defendant;

(b) the nature of the alleged offence and the alleged circumstances of its commission;

(c) the defendant's character, antecedents, age, health and mental condition; and

(d) the public interest."

33 Again without detailing the particular evidentiary or factual aspects, it seems to me that although subs 5(a) would not properly be given overmuch weight in the context of this case, that the other subparagraphs of that subsection would and should be.

34 So it is, therefore, that having regard to the nature of the alleged offences and the alleged circumstances of their commission, particularly as revealed by the eyewitness account in respect to the second indictment, the accused's mental condition which is irreversible and inexorably deteriorating, evidence of other dangerous conduct by her and, overarching all of those in the circumstances, the public interest, I am satisfied that a custody order is appropriate and I would make it in respect of each indictment. I accordingly find the accused not fit to plead and I make a custody order in respect of each of the offences on the indictments.