R v Jake Lewis Andrew

District Court of NSW|2018-09-24

Brief overview of Facts

At about 9:45am on Tuesday, 10 October 2017 passengers on the bus in Windang Road, Windang saw another passenger with what appeared to be a large gun. That passenger was Jake Lewis Andrew. He was heard to say he had bought it for $300. CCTV from the bus shows the gun was fired twice in to a padded screen. CCTV also showed another pistol style firearm being racked.
Police were alerted. The bus was stopped. Police asked Mr Andrew to get off the bus. He complied. He had a backpack with him. It was taken from him. Mr Andrew told police that if they opened the backpack the guns would be visible.
In the bag was a black .32 calibre Chinese manufactured repeating air pistol. It looked similar to a real Glock pistol except for a red trigger mechanism and a red extended barrel tip. It was loaded with hydrated gel pellets. The second item in the bag was a .35 calibre fully automatic airgun. It looked like a large black machine-gun style firearm. There were no distinctive markings to distinguish it visually from a real firearm. Both items on expert analysis are firearms within the meaning of the Firearms Act 1987. Also in the bag was a bottle with 20 hydrated gel pellets (ammunition) inside.
Mr Andrew told police he got the guns from a friend in Port Macquarie and that he had used them on a camping trip to fire the gel pellets. He said that he had more such guns at home. He said "…they're fun to play with, you can buy them online." Mr Andrew did not hold a firearms license or permit.
Police then went to Mr Andrew's home in Warilla. As they arrived three unknown males left his bedroom. In the bedroom were a further seven air operated guns. All are deemed to be prohibited firearms or pistols firearms. All were air operated and capable of firing a projectile of some kind; six were in working order. Hydrated gel pellets suitable for use in air guns were found. None of the nine firearms were safely stored.
Mr Andrew was arrested and charged with Firearms Act offences. He spent some days in custody. He was committed for trial to this court. Three serious charges are now brought against him: They are set out in the indictment: MFI 1.

Fitness to plead raised

Mr Andrews was born on 12/11/1993. He is now 24 years old. He was born with a congenital chromosomal condition known as 47 XYY syndrome. 47 XYY syndrome sufferers have 47 chromosomes instead of the usual 46. They have an extra Y chromosome. Those with 47 XYY syndrome often exhibit some physical differences to the norm; they can be bigger but with weaker muscles. The 47 XYY Syndrome can, and here does, cause sufferers significant cognitive deficits and learning problems.
An issue of Mr Andrew's fitness to enter pleas to the indictment was raised on a bona fide basis. Part 2, Mental Health (Forensic Provisions) Act 1990 therefore applies. That Act sets out procedures that must be followed. The procedures are of particular importance here for two reasons. First, Mr Andrew although a large adult has the mental age of a child; Secondly, the firearms while some might look real are in effect, although, importantly, not legally, toys.

The initial hearing

It had been intended that the fitness hearing could be determined on the reports, as both parties considered that Mr Andrew was unfit to participate in a criminal trial. I was, as is the practice in Wollongong District Court, with the consent of the parties, provided with expert reports in advance.
When the matter came before me on 12 September 2018 I raised a concern with counsel then appearing. If the matter had proceeded as expected I would have found Mr Andrew unfit for trial. The matter would then have been adjourned and referred to the Mental Health Review Tribunal. Given the nature of Mr Andrew's condition is permanent, the Tribunal would almost inevitably have determined he would not become fit within 12 months. The matter would then have had then referred back to this court for a special hearing to determine whether on the limited evidence available the accused committed the offence charged. This process could have taken many months.
Mr Andrew had the assistance of family and a support worker but he was obviously distressed by his brief appearances in this court. The delay involved would have exacerbated that distress.
It had occurred to me having read the report of Dr Martin: now exhibit A), that an alternative course was available. In his report Dr Martin, at page 7, says; "Regarding fitness issues, he [Mr Andrew] has an extremely limited understanding of the Australian legal system and had apparent difficulty (which I thought was genuine) in articulating elements as set out in the Presser criteria. He has a basic awareness of the charges against him and I think understands what it means to plead guilty or not guilty and would be able to confer with his lawyer in this regard."
Where there to a trial of the three counts in the filed indictment the prosecution would be required to prove beyond reasonable doubt a number of formal matters; the nature of the firearms, that they were not registered; and that Mr Andrew was not licenced. They must also prove Mr Andrew possessed the firearms and that for Counts 1 and 2, he fired them.
The concept of possession is not a difficult one even for a person with Mr Andrew's impairments: Similarly, the capacity to understand that a firearm can be, and was in fact, fired.
Mr Andrew has, according to Dr Martin, some capacity to confer with his lawyer and understand what it means to plead guilty or not guilty. While his ability to mount a defence would be compromised there is nothing in the material before me to cause me to doubt he could, with advice, accept he was in possession of the firearms and on two occasions fired a firearm while on a bus.
Dr Martin then says Jake Andrew would have a very little limited understanding of how a trial might run but his opinion allows for the possibility he may have the capacity to understand concepts such as possession, law and legal wrong doing, and accordingly enter guilty pleas.
This option not ruled out by the opinion of Mr McIntosh, whose initial report I had also read. Mr Andrew has on his testing some capacity to make decisions on his own behalf as long as time and effort is made to ensure he understands.
It is quite possible, applying the accepted criteria, as set out in R v Presser (1948) VR 45, for an accused with intellectual disability or cognitive deficits to enter guilty pleas to serious crimes even though they do not have the capacity to participate in a trial that puts the prosecution to formal proof of the allegations. Where a person has a capacity to acknowledge their guilt and enter a plea all of the benefits generally given for acknowledgement of responsibility, utilitarian saving of court time and other mitigating factors can and will be taken into account. Where after a special hearing an offence is proved on the limited evidence available; the benefits, utilitarian and otherwise, of an early guilty plea, are unfortunately denied to them.
After I raised these concerns with the parties as adjournment was requested, and allowed, so the parties could consider their positions.

The Fitness Hearing

A further fitness hearing was expedited. It was held on Monday, 24 September 2018. I have been assisted by Ms Steedman, Solicitor, who appears for the Director, and Mr James QC, for Mr Andrew. Mr James QC has the opportunity of conferencing Mr Andrew. It was senior counsel's considered view that Mr Andrew does have the capacity to give instructions on the limited basis set out by Dr Martin. Accordingly, the alternative course of a guilty plea to each count can be, and was, advised and has been understood by Mr Andrew. I accept that assurance.
Accordingly, it was open to me to determine that there is no longer any need for an inquiry to be conducted s 8(2) Mental Health (Forensic Provisions) Act 1990. However here, while I accept unreservedly senior counsel's assurance, the allegations are prima facie sufficiently serious and the issues raised sufficiently important as to justify full consideration and a determination that sets out the principles of law applied and the findings of fact on which I rely: s 11(2) Mental Health (Forensic Provisions) Act 1990.
The proceedings which were conducted in a non-adversarial manner relied on the reports of James McIntosh Psychologist (Exhibit A, 11 July 2018 and a supplementary Note 12 September 2018 Exhibit G) and Dr Andrew Martin, a forensic psychiatrist (Exhibit B, 27 July 2018). I also had the benefit of affidavits from Mr Andrew's mother, Kathryn Kirkness, 20 September 2018 and Sara Black, Mr Andrew's Solicitor, 17 September 2018: Exhibits F & E.
So far as the basic elements of each offence are concerned, each are prima facie able to be established. No defence is apparent. Counts 1 and 2 alleged Mr Andrew fired a firearm in a public place. Count three alleges Mr Andrew possessed more than three firearms at least one of which was a prohibited firearm or pistol and that they were not registered and that Mr Andrew was not authorised to possess them.
There is no issue that both experts noted are respected with training, study and experience in their relevant fields. I, however, must make my own determination based on all the evidence before me. The critical issues are the application of the tests which were first set out in R v Presser, at [48], adopted by the High Court in Ngatayi v The Queen (1980) 147 CLR 1 and Kesavarajah v The Queen (1994) 181 CLR 230.

Consideration

In summary, on most measures of intelligence and cognitive ability Mr Andrew falls in the extremely low range. His intellectual disability or cognitive impairment falls into the mild to borderline range. The term "mild" refers to a comparison between the levels of intellectual disability. It does not mean that the individual is only mildly affected in relation to the general population.
Mr McIntosh's testing reveals that, in particular, Mr Andrew's overall level of adaptive behaviour is in the extremely low range; that is, as high or higher than 0.1% of individuals of the same age. Similarly, his adaptive skills in the conceptual domain,; that is; his communication abilities and non-verbal communication skills are in the extremely low range. On the practical domain scale he again rates in the extremely low range. The practical domain scale relates to his ability to function and get around in the community, protect his physical well-being and perform basic self-care functions such as eating, dressing and taking care of personal hygiene.
Mr McIntosh draws my attention to the Diagnostic and Statistical Manual of Mental Disorder (5th Edition), American Psychiatric Association, Washington DC 2013. It emphasises the need to consider a person's overall ability and the importance of adequately considering functioning levels in forensic cases. Mr McIntosh concludes Mr Andrew falls within the mild to borderline intellectual disability range. He sets out some of the common features and difficulties associated with those with that level of intellectual disability.
Dr Martin took Mr Andrew through the "Presser criteria" specifically. He reviewed the answers given in the light of Mr Andrew's history, which he details. He concluded that although Mr Andrew had a basic awareness of the charges against him and might understand what it meant to plead guilty or not guilty and confer with his lawyer, he would have an impaired ability to follow the process of the trial and participate meaningfully in it or give his version of events if required. His ability to mount a defence at trial would be compromised because of his impaired intellectual functioning. Dr Martin concluded on balance, "…that Mr Andrew would be found unfit to plead or stand trial. His cognitive abilities would put him at a significant disadvantage when it came to making a defence or giving a version of events or participate meaningfully in a trial."
There are, so far as counsel are concerned, no significant issues. Both take the view, which is shared by the psychologist and a forensic psychiatrist qualified in this matter, that at present Mr Andrew is unfit to participate in a defended trial and that given his cognitive deficits are permanent it is unlikely he will ever to become so fit. These conclusions derive from the results of consultation, testing and assessment. Both experts are however of the view that Mr Andrew remains able to participate in a basic level in criminal proceedings. That is, despite his impairments and low or extremely low adaptive skills he does understand some basic concepts. This opinion is reinforced by the supplementary opinion of Mr McIntosh, where he notes that with, "additional and adequate support he [Jake Andrew] is able to demonstrate a basic awareness and understanding to advise his counsel": Exhibit G.
Ms Black in her affidavit sets out the process by which Mr James in conference was able to break down and explain to Jake Andrew in simple terms what the charges meant. She concluded that, "Whilst Mr Andrews may not have understood the complexity of the law, he was able to understand the difference between right and wrong and that he had done something wrong by law. He further understood that doing something "bad" or "wrong" in the eyes of the law meant that he was guilty."
Ms Black concludes her affidavit by noting that after a lengthy conference she and senior counsel were of the view that Mr Andrew was able to enter guilty pleas to the charges on the indictment. Ms Black was not required for cross examination and I have no difficulty whatsoever in accepting what she says.

Determination

I must make my own determination as to whether Mr Andrew is fit for trial, noting that that term encompasses fitness to participate in the present proceedings. Importantly, I note that the tests are directed to the minimum requirements for a fair trial. So long as an accused can understand and follow the proceedings, in each of its facets and can give appropriate instructions and present a proper defence to the charge, he or she is to be regarded as fit to be tried. I make this finding in context. The more complex the proposed proceedings the more likely it will be that an accused's cognitive and intellectual problems will impinge on their fitness to meaningfully participate in criminal proceeding; this is particularly so when here as Mr McIntosh notes, Mr Andrew's low levels on functioning tests must be considered.
Given the material before me, I find that on balance of probabilities that while Jake Andrew would not be able to participate in a defended criminal trial, he can make an answer to the charges by accepting each required element can be proved against him. He is able to do this through his counsel by giving the necessary instructions. He has some capacity to tell his lawyer his version of the facts. Although he may not have the capacity to tell the Court his version of events, that version can be given through his counsel. I find that he does have sufficient capacity to properly enter a plea of guilty to the charges.
In those circumstances, I find that Jake Andrew is fit to enter guilty pleas on the charges set out in the proposed indictment. As a consequence, these proceedings can continue and I need not refer this matter to the Mental Health Review Tribunal. The Indictment can be presented.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 December 2018

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