R v Mark Joseph SMITH

COUNSEL: W Robinson QC (Crown) R Hood (Offender)

1 Mark Joseph Smith ("the accused") is to be arraigned by the Director of Public Prosecutions in relation to three allegations of false swearing before the Police Integrity Commission. The offences were committed on 30 May and 8 August 2003.

2 On or about 28 June 2007 an indictment was filed with this Court containing the three counts upon which the prosecution proposes to proceed against the accused. Before arraignment an issue has arisen as to the fitness of the accused to be tried. This Court has determined that an inquiry should be conducted before the hearing of the proceedings in respect of the offences pursuant to s 8 Mental Health (Criminal Procedure) Act 1990 ('the Act').

3 That inquiry was conducted on Thursday 6 March 2008 pursuant to s.10 of the Act. The question of the accused's fitness to be tried for an offence is to be determined by a judge sitting alone and any determination of this Court must include the principles of law applied by the judge and the findings of fact on which the judge relied (s.11). In determining this matter the Court has not been asked to consider s.10(4) of the Act. The inquiry was conducted in accordance with the requirements of s.12 of the Act.

4 In R v Presser [1958] VR 45 Justice Smith (at 48), by reference to the relevant Victorian provision then in force said that the question to be determined as to whether a person was fit to plead (or now 'to be tried') was: "Whether the accused because of a mental defect fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him. …. he needs … to understand what he is charged with. He needs to be able to plead to the charge and 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 necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, 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."

5 The so called "Presser test" was the "test" considered by each of the medical experts retained by the Crown and the defence in this matter. They identified seven common criteria to be considered when determining whether the accused's condition(s) made him unfit to be tried.

6 The "Presser test" was essentially confirmed by the High Court in Kesavarajah v The Queen (1994) 181 CLR 230. The High Court said that the test to be applied was one that "looks to the capacity of the accused to understand the proceedings" but that the test did not mean that the accused was required "to have sufficient capacity to make an able defence" (see also Ngatayi v The Queen (1980) 147 CLR 1 at 8). This was confirmed again in Eastman v The Queen (2000) 203 CLR 1 at [57] per Gaudron J.

7 The "Presser test" was reaffirmed as appropriate under New South Wales legislation in subsequent decisions of the New South Wales Court of Criminal Appeal, such as R v Clarkson [2007] NSWCCA 70 and R v Rivkin (2004) 59 NSWLR 284 (at [296] - [298]).

8 In R v Drummond (New South Wales Court Criminal Appeal, 27 May 1994 unreported), the Court of Criminal Appeal, particularly in judgments of Gleeson CJ and Grove J, concluded that where an accused had "amnesia" of relevant events giving rise to, or related to, the charges to be brought against him or her, even where that amnesia arose from physical trauma to the brain, that person would not be unfit to be tried. The majority pointed out that an accused could lead evidence of an explanation for an absence of memory and an accused is not prevented from using information derived from secondary sources as he or his advisors think fit "in the course of the litigious contest". Furthermore, there were warnings that a trial judge could give in favour of the accused. Gleeson CJ, in approving what was held in R v Dennison (New South Wales Court of Criminal Appeal, 3 March 1998, unreported) said that that decision was "supported by a line of English and Scottish authorities to the effect that amnesia does not constitute unfitness to plead to a criminal charge". Specifically where a person suffers amnesia of relevant events, that does not mean that he or she is a person who is "incapable of letting his counsel know what his version of the facts is", within the meaning of what Smith J. said in Presser (per Gleeson CJ at 10).

9 The accused was formerly a police officer. It is alleged against him that on three occasions when giving evidence before the Police Integrity Commission, in May and August 2003, he gave false evidence as particularised in the charges in the indictment. A person known as "Salmon", a former New South Wales Police Officer, indicated to the New South Wales Crime Commission that he had information in relation to police corruption, some provided by the accused. The informant wore listening devices to meetings with the accused and legally obtained telephone interceptions were conducted on telephone services of the accused. Exhibit B sets out in some detail the material circumstances relating to the three charges and particularly the basis upon which it is alleged that the evidence given by the accused is false. Some of the evidence in the prosecution case is contained in recordings, either of the accused giving evidence or the accused recorded on listening device and telephone intercept tapes. A substantial part of the Crown case is dependant upon the truthfulness of evidence given by Salmon, particularly, of dealings he had with the accused over a period of time and with Andrew Rofe.

10 Although three medical practitioners, Drs. Klug and Pickles, called by the accused's counsel, and Professor Sachdev, produced by the prosecution, gave oral evidence before the Court, the inquiry had available to it a greater number of medical reports, including reports from other practitioners who were not called to give evidence. The most complete medical history of the accused appears in the report of Professor Sachdev of 10 June 2006, although I note other matters of medical history are provided from the treating doctor, Dr Pickles, and Dr Teychenné a consultant neurologist. Doctor Sachdev is a Professor of Neuropsychiatry for the School of Psychiatry, at the University of New South Wales.

11 In 1993 the accused suffered a head injury in a pool and a CT brain scan suggested that he had an arterio-venous malformation (AVM) in his brain. As it was asymptomatic no action was taken. On 22 September 1998 he had a seizure while driving and he was found to have a four centimetre AVM in the left temporal lobe. The accused underwent a resection of the AVM on 5 November 2004, as a result of which he developed aphasia (language problems), headache and right side tingling. He was then found to have a large haemorrhage in the upper part of the left temporal lobe. A craniotomy was "reopened" and a small amount of brain tissue overlying a haematoma was removed and the haematoma was evacuated with some residual AVM excised. In the course of recovery there was a fear that he may develop receptive dysphasia, that is an inability to understand or produce spoken language. He did not develop any significant speech problems and no detectable errors in language were noted in observations. He reported in January 2005 that under stress he had some difficulty retrieving the occasional word, however otherwise he had no visual impairment or other neurological deficits. There was concern that under stress there may be some difficulties.

12 After discharge from hospital the accused started to suffer epileptic seizures, although he was taking the anti epileptic drug Dilantin. He has had multiple episodes up until the present time and has had episodes of inability to speak and right sided weakness on a regular basis. These episodes are regarded as "focal seizures" which may be partially controlled by medication. I note that the accused was assaulted in November 2005, loosing consciousness, but this did not significantly change his symptoms. In June 2007 another AVM recurred and this was removed by surgery at that time.

13 Since that time the accused has continued to suffer epileptic seizures, not withstanding the use of anti epileptic medication, and has developed what has been diagnosed as a major depression and severe anxiety symptoms. He has been treated with anti depressants and psychotherapy. He also takes medication to sleep at night in addition to his anti epileptic medication.

14 The main evidence of neuropsychological testing is reported by Professor Sachdev and Dr Teychenné. Dr Teychenné also reviewed reports of treating Doctors Pickles and Cremer. Generally speaking the neuropsychological testing of Dr Miller on 8 May 2006 reported that Mr Smith felt that his word finding, reading and memory skills were impaired. Professor Sachdev in his report noted that there were "no word finding difficulties noted by the tester", the accused performed in the average range of intellectual functioning, had a normal span of attention and a good ability to solve problems "in a flexible" manner" but his memory test showed a variable performance. While he performed poorly on the task of remembering a word list he could remember "stories", within the normal range. He did well on a test of prospective memory, that is "remembering to remember". His word finding abilities were impaired and he was rated as "severe" on scales of depression, stress and anxiety. Sachdev conducted his own 'shorthand' psychometric or neuropsychological testing. Sachdev undertook several "mini mental" tests and assessed the accused's performance as showing no gross impairment. He scored 30/30 on the 'mini-mental tests'.

15 When Professor Sachdev tested the accused for a second time in November 2007, about seventeen months after first seeing him, he noted that the accused's history of himself was largely unchanged except for a worsening of his epilepsy condition. He claimed a worsening of cognitive deficits since the surgery of 2007, stating that his memory was poorer. He claimed difficulty with comprehending discussions with his legal team, with a need for material to be explained to him on a "one to one basis". He said he had difficulty comprehending papers that were forwarded to him and other problems of a cognitive nature. He told Professor Sachdev in November 2007 that he could not remember the details of the testimony he gave to the Police Integrity Commission, although he remembered people associated with that investigation including the man 'Salmon' but could not remember the circumstances in which allegations made by Salmon to him in respect of obtaining a false passport and possessing a police badge had occurred. He also reported significant increase in mood disturbance.

16 Dr Teychenné agreed with the assessment of Dr Miller that there was dysfunction within the left fronto-temporal region, with possible "kindling" in the right temporal lobe as a result of epileptic pathology. There was consequent memory loss or "disturbance". He would not exclude memory loss prior to surgery because of temporal lobe pathology and psychological factors. He believed that the patient could not instruct counsel or give his version of events because of memory loss.

17 From the evidence of Dr Klug and Dr Pickles and their reports, which it must be said are more limited than Professor Sachdev's in respect of the key issues for determination in this inquiry, I accept that the accused has been receiving intensive treatment for the symptoms of major depression, anxiety and his epilepsy. Although Dr Pickles as his treating doctor clearly has a genuine concern for his welfare, she was unfortunately the least dispassionate of the witnesses and the less reliable because of that. Many of her concerns are irrelevant to this inquiry. There was nothing sinister in her approach, but the matter cannot be judged by emotion, without regard to all the facts. In fact she, like Dr Klug, had little detail of relevant matters to the litigation in order to be able to properly form opinions about matters germane to the determination of this injury.

18 Dr Pickles in her report and in her oral evidence asserts that Mr Smith did not satisfy any of the criteria set down in the "Presser test". This cannot be accepted on an objective analysis for the evidence. Dr Klug, who was an impressive witness, so far as his evidence went, was of the view that in two respects the accused was not fit to be tried, either because he was unable to follow the course of the proceedings and/or because he was unable to assist in his defence by instructing counsel.

19 In relation to the first matter he noted the accused suffered from an "adjustment disorder", connected to his depressive illness. Further, with three major neurological interventions and damage from epileptic seizures, as well as the ingestion of many psychotropic drugs, there was interference with his concentration and memory. These problems made it difficult for him to collate information, particularly because of his inability to concentrate. He conceded that if a person was available to assist him to "translate matters in court" this may be of assistance but that the impending trial and the trial itself would create stressors on a day to day basis which would affect his health, cause on going seizures and exacerbate his depressive symptoms. He claimed that the accused could reach a point of panic where he may wish to flee the situation. He said that the accused's lack of memory would make it difficult for him to "assist in his defence by instructing counsel", as would his diminished concentration. I took this to also affect his ability to give his version of events, largely through his lack of memory.

20 He conceded that the accused could communicate to another person advancing symptoms consistent with heightened anxiety, but he may "freeze" If he "panicked", this would interfere with his thought processes. It must be noted that whilst Dr Klug saw him on two occasions, he was not assessing the accused for medico-legal purposes and was not fully aware of the details of the charges. Nor had he sought any information from the accused about the detail of the evidence such as he could remember it. He conceded the accused would have no difficulty listening to recordings of his own voice and the voices of other people germane to the case. Ultimately, he was of the opinion that the critical inhibition upon the accused was his memory and a diminution of concentration, affecting his ability to process information but that he could be assisted in these areas.

21 Professor Sachdev was of the view that the accused satisfied all the relevant "Presser" criteria to be fit to be tried, although he conceded that the accused had cognitive deficits, had perhaps substantial or significant medical and mental illness problems and was susceptible to both epileptic episodes and depressive symptoms.

22 He also conceded that the accused may need extra time in order to collate or digest information but that generally speaking the accused was able to comprehend and follow both oral and written instructions. He did not suffer gross aphasia but had no memory of the relevant events giving rise to the charges. He noted that the accused recognised and knew the name of the police informant and the second man involved, Andrew Rofe, he recognised and understood the charge brought against him, he had memory and knowledge of the man Salmon being accused of dealing in drugs and some other surrounding facts. The doctor conceded also that he did not know whether this was "real memory" or "learnt memory". He was unable to say whether the memory held by the accused was relevantly "independent".

23 Professor Sachdev believed that the accused had the capacity to remember, or recollect, evidence being given and recordings being played, although some details may escape him. He may need extra time, or may need to sit "one to one" with a person from time to time to assist him to follow the information being provided in court. This person was referred to in passing as a "logical translator" (as I understood it without a transcript) but he did not believe the accused needed a "logical translator" all the time. Such difficulty as the accused had in collating information could be overcome with assistance.

24 However, whilst he may need assistance in the processing of information, he would not have trouble of a major type in logical thought processes and making logical deductions. He accepted that stress and anxiety from the build up to the trial and the conduct of the trial could cause a quantative change to his ability to understand and process information, but not a qualitative change. He accepted that an adjustment disorder, which involves acute symptomology when stressed, may affect the accused's capacities but believed that his symptoms could be monitored during the trial by those dealing with him, or from time to time by those treating him.

25 In his evidence and his report Dr Sachdev noted that Dr Miller's testing showed that in memorising a list of words the accused's performance was below average however, on logical memory and prospective memory tests he was within the "normal band" or was "average".

26 Both the Crown and the accused, by reference to the character of the reports tendered, broke the "Presser criteria" down to seven issues. Each of the reports tendered addressed each of these issues in the same general order.

27 Learned Senior Counsel for the prosecution submitted Dr Pickles was not objective and did not give compelling evidence. Dr Klug she said was obliged to defer to the greater "technical" knowledge of relevant matters of Professor Sachdev who was the most compelling witness. She pointed out that ultimately all the doctors (with the exception of Pickles) gave either a positive response or a qualified positive response, to the capacity of the accused to satisfy the seven relevant criteria. She conceded that stress may affect his efficiency in processing information. Although there will be difficulties, extra assistance may be required for the accused during any trial and he may need to be given time in the conduct of the trial, all of these matters could be accommodated. If so, any trial conducted would not then be unfair. Ultimately, on the balance of probabilities, the Court should conclude that the accused is fit to be tried. She noted that the trial process was not an exercise in "perfection", the accused could instruct his counsel, there was absolutely no evidence produced that he was unable to communicate instructions to his counsel or understand what was occurring and the like. She said in her submissions that it was significant that there was no evidence from his solicitor, as was often the case in such matters, pointing to the inability of the accused to communicate or convey instructions.

28 Mr Hood, learned counsel for the accused, conceded in his submissions that the matter rested on the fourth and sixth "Presser" criteria as identified by Dr Klug. The "seventh" criterion has a logical connection to the sixth. He submitted skilfully that the accused could not follow or understand the proceedings. Even Sachdev, he submitted, pointed to the need for a "logical translator". As to his ability to assist his defence by instructing counsel, he submitted that the accused was not in a position to recognise any deficiency had may be having in identifying matters upon which he needed to give his counsel instruction as he had difficulty collating and processing information. It was submitted that stressors, such as the trial process, would affect the accused's concentration and his ability to understand what was going on. His lack of memory of relevant events reflected upon his inability to give a version of events. He would not have the capacity to undertake the extensive note taking which would enable him to remember what was occurring in court or to process what was occurring in court.

29 The Crown in reply particularly referred to the assessment of Dr Miller from May 2006 which pointed to a normal span of attention and a good ability to solve problems in a flexible manner. Whilst his memory had shown variable performance, it was not entirely deficient in remembering immediate past events.

30 The most impressive witness in giving evidence on the critical matters for determination was Professor Sachdev. His written reports were logical and persuasive. He gave the impression of making a dispassionate assessment, with a thorough knowledge of the background of the accused's medical condition and, particularly, a thorough knowledge of relevant neuropsychological testing, which in the context of details of the relevant medical history would appear to be the most reliable guide to an assessment of the true cognitive abilities of the accused.

31 In assessing Professor Sachdev's opinions I have not completely ignored some of the observations of Dr Pickles, particularly as to the character of the illnesses and medical conditions from which the accused suffers and the capacity for matters to trigger symptoms of his illnesses. I note her opinions about his difficulties in processing information and his need to write down things in order to assist him to collate or process information. Dr Klug expressed similar opinions. She was of the view that generally speaking his inability to collate information or process information made him unable to meet any of the criteria, as I earlier observed. But, as his counsel realistically noted in his submissions, that could not be claimed in relation to the accused's ability to understand what he is charged with, to enter a plea to the relevant charges, to understand the nature of the proceedings, to understand the substantial effect of the evidence against him or for that matter in providing his version of the facts, such as he can with an absence of memory of relevant events.

32 Professor Sachdev had some qualifications so far as the capacity of the accused to follow the course of the proceedings and noted the limitation in his ability to assist in his defence by instructing counsel. This last matter included his inability to recall the evidence he gave before the Police Integrity Commission and the events preceding and following the hearing.

33 One of the features of Dr Klug's opinions was that, whilst he foresaw problems in concentration and processing of information as potential problems, ultimately his assessment of that situation was primarily speculative. He did express his opinions in probabilities but lacked empirical data or evidence to support his speculations. In any event, he identified strategies for the conduct of the proceedings which could provide relevant fairness to the accused. Neither he, nor Dr Pickles, had undertaken any psychometric or other testing themselves to quantify potential cognitive deficit, or even present cognitive deficit. In fact their assessment of his deficits, giving rise to identification of relevant "Presser" criteria, does not, in my opinion, give full regard to the neuropsychological evidence referred to in the reports of Drs Teychenné and Sachdev or to be found elsewhere. Ultimately, Dr Teychenné's assessment of failure to meet "Presser" criteria turned upon absence of memory. Dr Klug took into account other factors, such as shortcomings in concentration and the effects of stressors, but his view that these make the accused unfit to be tried is not sustainable and was itself qualified by concessions he made as to strategies to overcome unfairness.

34 The evidence is quite clear that the accused understands what the charges are, is able to enter a plea to the charges and generally understands the nature of the proceedings brought against him. Such inability as is claimed for him not to follow the course of the proceedings boils down to matters that concern themselves with the "speed" or "rate" at which the accused might process information provided to the court and the need from time to time for the accused to receive "one on one" translation of matters occurring in court. On the other hand the accused's logical reasoning processes are within normal range. It is obvious that procedures could be undertaken in the course of a trial to provide some assistance to the accused which would not necessarily bog the trial down in disruptive delay. The accused understands the substantial effect of the evidence to be given against him and, in the context of what was discussed in Drummond by Grove J (at p.8), is able to assist in his defence by instructing counsel, in the pure sense, even if he may be unable to instruct his counsel because he has no memory of relevant events. Likewise, he is able to provide his version of events, in the manner discussed in Drummond by Gleeson CJ (at 9-10), notwithstanding a lack of memory of relevant events. Ultimately it is a claimed absence of memory that underpins a claim of unfitness to be tried and that, without more, is not sufficient to justify the finding of "unfitness". Whilst there is an inexorable logic to the reasoning in Drummond, and I am bound to accept its ratio, I wonder how the test of fairness, central to Presser, and identified in recent High Court decisions previously quoted, can be accorded to an accused whose loss of memory is by reason of organic or pathologically proven brain damage, or trauma, occurring subsequent to relevant events rather than "forgetfulness" or excessive alcohol consumption. The observations of the learned Chief Justice of reduction of court delay by such a strategy denies the ability of Courts to identify genuine or 'legitimate' bases for considering "Presser" criteria in order to address their real purpose. It would not be much of a trial if a brain damaged person cannot develop instructions or a version from secondary sources.

35 There is no evidence of an inability to communicate with, and understand advice from, his legal advisors. The analysis of learned Senior Counsel for the Crown, Ms Robinson QC, of the weight of opinion from all experts, except Dr Pickles, supporting satisfaction of "Presser" criteria, is sound. It must be fairly said that the various conditions that the accused suffers from may excite sympathy, notwithstanding the character of the charges brought against him. Whatever be the character of his conduct giving rise to the charges the accused clearly is now burdened with conditions that will remain with him all of his life and create perils for him in the future in a range of ways. But, the appropriateness of him being tried, or the appropriateness of any punishment for him if convicted, are matters for consideration by both the prosecuting authorities and the Court required to adjudicate such matters. His conditions do not render him unfit to be tried.

36 I conclude that the evidence establishes, on the balance of probabilities, that the accused is fit to be tried. All the criteria identified in the 'Presser test' are satisfied. However, any proceedings relating to the prosecution of the accused will need to provide opportunity for the accused, during the hearing, to obtain 'one on one' assistance to follow the proceedings from time to time and there will need to be suitable breaks and adjournments to assist the accused to digest, collate or synthesise the evidence given in the trial. As the learned Crown Prosecutor pointed out, if an acute episode caused by stress or anxiety occurred, such as to interfere with the accused's understanding of proceedings, applications would need to be made and entertained by the Court with control of the proceedings for appropriate steps to be taken to provide the accused with professional assistance and treatment or to further consider his continuing fitness, or unfitness, to be tried.

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