R v Griffith [2008] ACTSC 77

3. A summons was issued in respect of this offence on 1 February 2006, and the issue of fitness to plead was first raised by Mr Griffith's solicitor on 14 December 2006 at a case management hearing.

4. On 16 February 2007, Dr G J George on behalf of ACT Health provided a report about Mr Griffith to the Deputy Registrar of the ACT Mental Health Tribunal. His assessment concluded "Addressing the terms of reference with respect to this request by the Mental Health Tribunal, Mr Griffith presents as 'Unfit to Plead'."

5. It is not clear why a request would have come from the Mental Health Tribunal. Under Division 13.2 of the Crimes Act 1900 (ACT) as in force since before the fatal road accident, a determination of fitness to plead is to be made by a court, but under earlier versions of the Act, the Tribunal had a role in making such a determination (see Division 13.2 of the Crimes Act 1900 as in force on 23 February 2005). It is possible that the Tribunal's request mentioned by Dr George reflected that earlier role.

6. The determination of fitness to plead by this court is to be made by reference to s 311 of the Crimes Act 1900, which is as follows:

_(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 - _

(a) understand the nature of the charge; or

(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

(d) follow the course of the proceeding; or

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

(f) give instructions to the person's lawyer.

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

7. Subsection 314(3) provides that if the question of fitness to plead comes to be considered by the Supreme Court, and the court is satisfied that there is a real and substantial question about the defendant's fitness to plead, the court must reserve the question for investigation. Section 315 sets out the procedure for the investigation. Under subs 315(2), the court may make one or more of a range of orders, including an order for the examination of the defendant by a psychiatrist or other health professional.

8. At a directions hearing on 15 March 2007, Gray J ordered that Mr Griffith be examined by Dr George to determine his fitness to plead. Although there is no relevant record to this effect on the court file, I have treated Gray J's order as indicating a determination for the purposes of subs 314(3) that there was a real and substantial question about Mr Griffith's fitness to plead to this charge.

9. Subsequent correspondence from Dr George mentions a further assessment dated 17 April 2007, but this document is not on the court file and neither counsel for the Director of Public Prosecutions nor counsel for Mr Griffith was able to produce it. Bench sheets dated 9 May 2005 and 6 June 2005 refer to the fact that the report is still awaited, and the bench sheet of 6 June records that Dr George's report is "est to be a further 6-8 weeks - see email". The email indicates that Dr George has "done his assessment" but has referred Mr Griffith for further tests, hence the 6-8 week delay. The 17 April reference might be to an assessment done but not finalised, pending the further tests.

10. On 10 July 2007, Dr George provided a supplementary report on Mr Griffith. This report referred to, and took account of, an MRI of Mr Griffith's brain that had been carried out on 5 June 2007, and a report by a psychiatrist, Associate Professor Looi, which does not appear to be on the court file.

11. In this report, Dr George concluded that Mr Griffith could be seen as "Fit to Plead", unless the court decided that:

... because Mr Griffith did not have any memory of the alleged offence and, therefore, as a result, did not understand the nature of the charge that he was facing then, he would be regarded as 'Unfit to Plead'".

12. On 6 September 2007, Gray J considered Dr George's report and directed that his attention be drawn to subs 311(2) of the Crimes Act 1900, which provides that "A person is not unfit to plead only because the person is suffering from memory loss."

13. Dr George's report in response to Gray J's direction was provided on 13 September 2007. In the meantime, Mr Griffith's representatives had indicated that they wished to obtain a report from a neuropsychologist, and this was provided by Dr Tania Lioulios on 10 February 2008. It built on an earlier assessment and report that had been provided by Dr Lioulios on 23 October 2006.

14. The matter initially came before me on 12 March 2008. At that point all the reports mentioned (except the report of 17 April 2007 mentioned in Dr George's later correspondence) were tendered, and counsel declined to make any further submissions.

15. Dr George's 13 September 2007 report was very brief. It refers to the fact that under the Crimes Act 1900, "a person is not unfit to plead only because the person is suffering from memory loss" and then says:

In this situation I have to conclude that Mr Griffith would, therefore be seen as Fit To Plead in his current circumstances. In reviewing this decision it may be useful to access the three reports I have completed on Mr Griffith since he was initially seen on February 16, 2007.

16. Dr Lioulios's report of 10 February 2008 was much longer. It provided a detailed assessment of Mr Griffith's condition by reference to each of the tests set out in subs 311(1) of the Crimes Act 1900, and concluded that Mr Griffith suffers impaired functioning that would affect his capacity to participate in a trial process in each respect covered in subs 311(1). The report also indicated that Mr Griffith's impairment is not merely a result of memory loss. Dr Lioulios' report says:

The specific impairments highlighted by this testing are detailed below and, in my opinion, demonstrate Mr Griffith's incapacity to enter a plea in the criminal proceedings against him.

17. Noting that the two reports reached different conclusions, but that Dr George had never engaged in a detailed assessment of Mr Griffith against the specific criteria set out in s 311, I directed that Dr George be asked to examine Dr Lioulios's report and provide any comments on her assessments and conclusions.

18. Dr George provided that further report on 18 March 2008. He pointed out that his two earlier reports were based on a clinical assessment, but that he "was quite insistent that it was difficult to draw a full conclusion from a clinical assessment without a neuropsychological assessment". Now that the neuropsychological assessment had been completed, Dr George advised, "it does appear that on the basis of Dr Lioulios' opinion, Mr Griffith would be seen as Unfit to Plead". Dr George reports that he believes "that Dr Lioulios has demonstrated that Mr Griffith suffers a dementia" and that in these circumstances he would agree that Mr Griffith "is Unfit to Plead and likely to remain so for in excess of 12 months".

19. The current position, then, is that both the Consultant Psychiatrist commissioned by the prosecution to assess Mr Griffith, and the neuropsychologist to whom Mr Griffith's legal representatives referred him, agree that Mr Griffith is unfit to plead within the meaning of the Crimes Act 1900 provision.

20. Accordingly, I do not need to decide between competing assessments, but I do need to consider Dr Lioulios' assessment, with which Dr George agrees, and satisfy myself that the legislative test is met.

21. Dr Lioulios assesses that Mr Griffith is suffering an amnesic syndrome as a result of frontal lobe degeneration found in alcohol-related dementia, which affects "encoding of new information as well as retrieval of past information". Dr Lioulios points out that this learning impairment does not simply produce a loss of memory, but interferes with Mr Griffith's "ability to organise information in a logical schematic manner" and causes "the loss of strategic capability". Dr Lioulios considers that the learning impairment "significantly and negatively impact[s] on [Mr Griffith's] capacity to comprehend and analytically consider any charge brought against him".

22. Dr Lioulios reports administering to Mr Griffith a test for dementing illness (the Middlesex Elderly Assessment of Mental State test), and that his results indicated a moderate to severe dementing illness affecting his executive functions through the loss of quantitative reasoning functions, memory impairment affecting both short-term and long-term memory, and reduced strategic and fluid semantic abilities.

23. Dr Lioulios diagnoses Mr Griffith as suffering from Alcohol-related Dementia (Korsakoff's Dementia). The effect of the dementia is to impede significantly Mr Griffith's capacity to learn and process information. She has also diagnosed "borderline clinical levels of Depression", which may increase some of the effects of Mr Griffith's other conditions.

24. One of the tests administered to Mr Griffith (the CVLT 2 test of learning and memory) indicated "a lack of structure and consistency to his learning and a haphazard processing of new information as he receives it". In particular, Mr Griffith's lack of strategic information processing causes fairly high levels of confusion and confabulation". This problem, "combined with amnesic syndrome, resulted in [Mr Griffith's] inability to identify or recognise information, even when prompted".

25. Dr Lioulios provided an example of Mr Griffith's inability to make judgments about whether events occurred or did not occur, as follows:

For example, if he were presented with a scenario, and it were suggested that this scenario took place, Mr Griffiths would have no memory, recall or discriminative ability to determine if it did or did not occur.

26. Dr Lioulios also reported reduced performance by Mr Griffith on tests of Social Reasoning (Comprehension) and Abstract Reasoning (Similarities), which indicate "a reduction in his ability to reflect analytically on evidence presented so that he can make a judgement about the effect on the case in general as well as the consequences arising from this effect".

27. Thus, on the basis of tests administered and reported by Dr Lioulios, it seems that Mr Griffith, largely as a result of alcohol-related dementia but possibly to some extent as a result of depression, is affected by the following impairments:

(a) a reduced capacity to encode new information or to retrieve old information;

(b) a reduced ability to process new information, and to organise information in a logical schematic manner;

(c) a loss of strategic capability;

(d) impaired executive functions, including because of loss of quantitative reasoning functions and reduced strategic and fluid semantic abilities;

(e) reduced reasoning capacity and capacity to analyse and make judgments.

Assessment of Mr Griffith against Crimes Act 1900 s 311

1"> 28. The statutory tests for fitness to plead can be assessed having regard to these findings:

(a) Could Mr Griffith understand the nature of the charge (par 311(1)(a))? The impairments identified in [27] above may not rule out a superficial understanding by Mr Griffith of the words and basic import of the charge against him. Having particular regard to Mr Griffith's reduced ability to retrieve old information, reduced ability to organise information, and his lack of strategic capability, however, I find that he could not understand the nature of the charge in any meaningful way.

(b) Could Mr Griffith enter a plea to the charge, and exercise the right to challenge jurors or the jury (par 311(1)(b))? Dr Lioulios indicated that Mr Griffith retained language abilities allowing him to converse at a basic level and that he would therefore be able to communicate a plea (by which I take her to mean to articulate the plea). Nevertheless, I find that, as a result of Mr Griffith's reduced ability to retrieve old information, loss of strategic capability and reduced capacity to analyse and make judgments, he is not capable of entering a plea, in the sense of a deliberate plea made with a recognition of its implications. His reduced capacity to organise information and to make judgments means that he cannot properly exercise his rights in relation to jurors or the jury.

(c) Could Mr Griffith understand that the proceeding is an inquiry about whether he committed the offence (par 311(1)(c))? Because of Mr Griffith's reduced ability to process new information, and to organise information in a logical schematic manner, and his reduced capacity to analyse and make judgments, I find that he would be unlikely to understand the nature of the proceeding against him.

(d) Could Mr Griffith follow the course of the proceeding (par 311(1)(d))? Mr Griffith's reduced capacity to encode and process new information, and to organise information in a logical schematic manner, would make it almost impossible for him to follow the course of the proceeding.

(e) Could Mr Griffith understand the substantial effect of any evidence that may be given in support of the prosecution (par 311(1)(e))? I find that because of Mr Griffith's reduced capacity to organise information in a logical schematic manner, and his reduced capacity to analyse and make judgments, he would have real difficulty in understanding the substantial effect of evidence given in support of the prosecution or otherwise.

(f) Could Mr Griffith give instructions to his lawyer (par 311(1)(f))? Because of Mr Griffith's impairments generally, but in particular his reduced ability to organise information in a logical schematic manner, loss of strategic capability, impaired executive functions and his reduced capacity to make judgments, I find that Mr Griffith could not give reliable instructions to his lawyer.

29. Accordingly, I find that Mr Griffith is unfit to plead by reference to all the criteria set out in subs 311(1).

30. I further find that, although impairment of his memory functions is significant in my assessment of Mr Griffith's capacities against some of the subs 311(1) tests, the significant impairment relates mainly to Mr Griffith's inability to form the new memories that he would need to be able to take a proper part in the trial processes, rather than to any loss of memory of past events, and therefore subs 311(2) does not prevent a finding that Mr Griffith is unfit to plead.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Solicitor for the prosecution: ACT Director of Public Prosecutions