R v MILLER [NO.2] No. SCCRM-00-101 [2000] SASC 152

Through counsel who exercised his discretion pursuant to s 269W of the CLCA, the accused elected pursuant to s 269B(1) of the CLCA to have all aspects of the investigation heard and determined by a judge sitting alone.

The evidence concerning the accused's mental disorder previously given before the District Court Judge had been by way of both reports and oral evidence. By consent I received those reports and a transcript of the oral evidence. I received additional reports and heard oral evidence from a number of expert witnesses. In addition, by consent the Crown tendered statements relevant to the events in question, including interviews with the complainant. It was agreed that, for the purposes of the investigation under Part 8A, I should treat the statements and interviews as accurate.

The objective facts are relatively straightforward. The complainant worked in a shop that is part of a shopping centre at Paralowie. On Wednesday, 2 September 1998 she left the shop at about 7.00 pm. As the complainant walked through a reserve, the accused grabbed her shoulder from behind. She turned to face the accused. He pushed the complainant to the ground and sat on her thigh. He tore her t-shirt and, in the process, the complainant's brassiere came off. He pulled her trousers off. When she screamed he struck her about the face. During the assault, the accused said he had a gun and told the complainant to listen to him or he would kill her. The accused asked the complainant to take his trousers off. He kissed her on the mouth and about her chest and touched her on the outside of her vagina. The accused removed his penis from his trousers and insisted that the complainant take it in her hand and insert it into her vagina. When the complainant positioned the penis alongside her vagina, the accused responded by striking her.

The complainant's screams were heard by a witness who was reversing her car from a nearby driveway. She came to the aid of the complainant. She saw the complainant, naked, running and being pursued by the accused. As the witness yelled out, the accused turned and fled. He was pursued and ran to the shopping centre. It is unnecessary to canvass the details of the pursuit described by different witnesses. The accused was wearing a basketball-type singlet which he removed during the course of the pursuit. Some minutes after he fled, the accused entered a bottle shop and purchased alcohol. While he was in the shop, people nearby but outside the shop were talking about a woman being attacked. The accused was heard to say "What woman, what woman".

Section 269I of the CLCA directs that the court presume that the accused is mentally fit to stand trial unless it is established that he is mentally unfit to stand trial. The criteria by which that issue is to be determined is set out in s 269H which is in the following terms:

"Mental unfitness to stand trial 269H. A person is mentally unfit to stand trial on a charge of an offence if the person's mental processes are so disordered or impaired that the person is - (a) unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based; or (b) unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or (c) unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings."

The accused's fitness to stand trial is to be determined at the date of the trial, but having regard to the likely length of the trial and to "what the accused's condition will or is likely to be during the course of the trial" (Kesavarajah v The Queen (1994) 181 CLR 230 at 246_)._ The medical practitioners agree that the accused's mental processes are impaired, but there is disagreement as to whether that impairment has resulted in the fulfilment of any of the conditions set out in sub-paras(a)-(c) of s 269H.

The accused is now about 31 years of age. Although details are not available, it appears that at a young age the accused may have sustained a serious head injury with frontal lobe damage. In addition, he may also have suffered some brain damage as a result of persistent heavy alcohol abuse. A psychologist, Dr Jack White, assessed the accused in August, 1999. He arrived at the following conclusions:

* The accused's overall intelligence is within the mental retardation range and in the bottom 0.5 percentile range of the general population. His non-verbal functioning is significantly inferior to his verbal functioning. * The accused's ability to deal with abstract verbal information is grossly limited to the point where it is almost non-existent. For example, when asked in what way an orange and a banana were similar, rather than responding that they were both fruit, the accused said an orange is round and a banana is shaped like the moon. Similarly, when asked how a lion and a dog are similar, rather than answering that they were both animals, the accused replied "dogs are man's best friend, a lion lives in the zoo". * The accused's ability to organise visual-spatial information is very poor. On testing his planning was disorganised and he was unable to identify simple errors. He was extremely slow in carrying out the task. * The accused's understanding of general information is poor. While he demonstrates basic mental control, both his short term and working memory are extremely limited. In both verbal and visual short-term memory tasks, the accused's performance was consistent with a person who has a major cognitive impairment. * The accused's overall cognitive functioning is at the average range for a six-year-old, but his ability to think in an abstract way is significantly below that of an average six-year-old as it is almost non-existent.

Dr Jenny Curran is a psychiatrist who has not practised in the field of forensic psychiatry. She has specialised in the psychiatry of intellectual disability. In particular, her speciality is concerned with intellectual disability arising from whatever cause, but occurring within the first eighteen years of life which is the developmental period. I do not regard Dr Curran's limited experience in the field of forensic psychiatry as of any significance in view of the issues to which her evidence was addressed.

Dr Curran interviewed the accused on 5 May 2000. Asked to comment on drawing a parallel with the capacities expected of a normal person at specific ages, Dr Curran said such parallels tended to oversimplify the problems of an individual, but they were a helpful guide for those relatively inexperienced in working with persons suffering from intellectual disabilities. In her opinion, equating the accused with a six-year-old is probably an overestimate of the accused's abilities in view of specific cognitive problems from which the accused suffers in addition to his overall intellectual disability. As examples she referred to his tendency towards impulsivity and difficulties with conceptual ideas which she said were probably nearer to a person functioning at a pre-school level.

Both Drs White and Curran were of the view that the accused is unable to understand the charge of Attempted Rape. The accused's understanding is limited to the concept that he did not have sex with the complainant and, therefore, in his mind he is not guilty of any offence. The inability to understand the concept of attempted rape is caused by the frontal lobe dysfunction.

As to whether the accused is capable of understanding the basic elements of the charge, in Dr Curran's opinion the accused could understand that he is charged with trying to have the physical act of sexual intercourse. If a physical demonstration was given of a female pushing him away, he might be able to hold that image in his mind. In Dr Curran's opinion, however, he would not understand it in terms of the female as a separate human being not wanting, in a consensual way, to engage in sexual intercourse. Dr Curran thought she could teach the accused to learn to repeat what she was saying about a description of an event, but in her view the accused would not be able to retain that information in a meaningful way during court proceedings. It would remain in his mind as a conversation he had with Dr Curran and the details would not be available in his memory for the purposes of participating in the court proceedings. The ultimate effect is that he does not understand the issue of consent. The area involving conceptual thinking about another person's mental state is an area in which the accused has great difficulty.

Although Drs White and Curran did not specifically address the accused's capacity to appreciate that the charge also involves his knowledge, at the time of the attempt to have intercourse, that the complainant was not consenting or a realisation that she might not be consenting, their evidence leaves no doubt that, in their opinion, the accused does not have the capacity to comprehend such a concept as applied to his circumstances.

Dr Craig Raeside is a psychiatrist of considerable experience in the field of forensic psychiatry. He interviewed the accused on 29 April, 1999 and 18 May, 2000. Dr Raeside has consistently maintained the view that the accused is fit to stand trial. As to his capacity to understand the nature of the charge in all its details, Dr Raeside agreed that the accused has demonstrated some difficulty in combining the concepts of attempt and rape. This arises because the accused thinks in a concrete way and believes he did not rape the woman. Dr Raeside was of the view, however, that by the end of the assessment during which Dr Raeside explored the accused's understanding of putting the concepts together, the accused was able to do so. As to the accused's capacity to understand at trial that the charge includes the element of his knowledge that the complainant was not consenting or realisation that she was not consenting and a determination to proceed nevertheless, Dr Raeside agreed that this issue has not been explored with the accused. Given the lack of exploration of that issue with the accused, Dr Raeside expressed the following view (p 311):

"My opinion is that, in the context of what was being asked, I think he understands that is tied in with what he is being charged with, and that is partly his explanation by way of defence as to what is happening; when she yelled, he then knew. I understand the concept you are addressing as far as now. I haven't explored that in that context, but I believe that was contained in the context of the conversation we had."

Dr Raeside is an impressive and impartial witness with considerable experience. However, a close examination of his reports and the actual questions he asked during his most recent examination of the accused demonstrate that this critical issue was not directly or indirectly addressed with the accused. In my opinion, given the accused's intellectual capacity and cognitive deficits, and taking into account the concentration of the questions upon his understanding of the concepts of attempting to have sexual intercourse and lack of consent by the complainant, the accused could not possibly have appreciated from those conversations that a further element centred upon his knowledge or realisation is involved.

Further evidence concerning the accused's capacity to understand the nature of the charge was given by another psychologist of considerable experience, Dr Michael Wood. He examined the accused on 24 May 2000 at my request. During the course of cross-examination, Dr Curran had requested further information which led to my requesting the report from Dr Wood. He conducted a number of tests specifically aimed at determining the extent of any frontal lobe damage. The result with respect to the accused's level of comprehension was surprisingly good. However, having heard more detail about the nature of the questions and answers, I have considerable reservations about the reliability of the results as a guide to the accused's true level of general comprehension.

As to formal intellectual assessment, Dr Wood reported that the accused was found to be functioning in the bottom one per cent of the population with an overall IQ of 63. This was a very similar result to that obtained in 1997 by a psychologist, Mr Richard Balfour. Verbal learning, however, presented a significantly different picture. The accused's performance was strongly indicative of marked impairment and demonstrative of an IQ of approximately 32. A number of cognitive tests resulted in performances significantly below average.

Dr Wood concluded that there is a strong possibility that the accused has impaired functioning of the frontal lobes of the brain over and above his intellectual disability. Dr Curran said she found the report of Dr Wood very helpful. In her opinion, the report confirmed that the accused possesses a rather extraordinary combination of difficulties, but is able to present himself as a person who understands at a better level than he actually understands. To that extent, the accused's presentation is misleading as to his actual level of comprehension.

Dr Wood was asked about the accused's capacity to understand the nature of the charge. He thought that the accused could understand in a "one-to-one situation" that the charge is that he tried to have sexual intercourse with a particular woman. He thought the accused could understand that it is said that the woman was not consenting. As to the suggestion that the accused could understand the further concept concerning his knowledge of a lack of consent or realisation that the complainant might not be consenting, Dr Wood thought it was "pushing the limits" of the accused's abilities to comprehend.

Dr Wood was asked about a series of questions and answers that occurred during Dr Raeside's interview with the accused on 18 May 2000. The Crown placed considerable reliance upon these questions and answers. Notwithstanding a superficial appearance of comprehension of the concepts of rape and attempted rape, it was the opinion of Dr Wood that the accused demonstrated a difficulty in understanding the concept of attempted rape. Dr Wood said (p 247):

"I think the issue is that he could see, in a sense in abstract, what those issues were with regard to sex and attempted rape, but transposing it over to his own situation would be more difficult for him. It was something he didn't seem to be able to do."

As Dr Wood expressed it, if the accused is provided with a meaning, he can provide the word. However, if the accused is provided with the word he has more difficulty in understanding the meaning because that is a more complicated task in retrieval of information.

The other area of concern was the accused's capacity to retain information. His performance in this area was very poor. In addition, any learning that he was able to complete was vulnerable to the effects of interference. Dr White used the example of learning that occurred during his examination which was followed by an intervening task. After an interval of half an hour, the accused "could recall absolutely nothing from the information." In Dr Wood's opinion, whatever comprehension the accused managed to gain in a one-on-one situation, he would not be able to retain that comprehension for any significant period. On the assumption that the accused could reach some form of understanding of the formulation of the charge of attempted rape, Dr Wood doubted whether he would be able to understand that information at the end of half a day in a court room setting.

Dr Ken O'Brien is an experienced forensic psychiatrist. He saw the accused on 6 October 1999. In a report dated 12 October 1999, Dr O'Brien stated that initially during his interview with the accused he "felt that [the accused] may well be unfit to plead". He said, however, that he found by patience and reframing of questions together with related techniques that the accused had a better understanding of the concepts than Dr O'Brien had originally thought. Faced with the differences of opinion, Dr O'Brien said that he appreciated Dr White's opinion and could well understand how Dr White arrived at that view. He said, however, that on balance he was more in sympathy with Dr Raeside's opinion. Dr O'Brien expressed the view, however, that if the accused was not legally represented, Dr O'Brien "would have to give him the benefit of the doubt and state that he was unfit to plead."

Asked to comment on the view of Dr O'Brien that if the accused was unrepresented he may not be fit to plead, Dr Raeside said (p 313):

"A. I would be stronger in that view, and I would say if he wasn't represented, then he would be unfit. I don't think he could adequately follow the proceedings and represent himself, given his limitations."

Dr Raeside expanded on why he was of that view (p 315):

"A. My concern with him is that he needs patient sort of help, both by the court and his counsel, to assist him to follow the proceedings. I believe that the nature of the trial unrepresented, he would become lost, would not be able to follow the proceedings of the trial, given his limitations."

As will appear later in these reasons in the passage cited from the judgment of the majority of the High Court in Ngatayi v The Queen [1980] HCA 18; (1980) 147 CLR 1, the capacities of the accused are not to be judged on the basis of capacities unaided by counsel. However, the evidence in this regard demonstrates that, even adopting the view of Dr Raeside, the accused is perilously close to being mentally unfit to be tried.

Speaking generally, Dr White acknowledged that the overall view of Dr Raeside that the accused was fit to stand trial was a legitimate view. Similarly, Dr Raeside accepted that the views of Drs White and Curran were legitimate views available on the material. In accepting that the opposing opinions were legitimate views, Dr Raeside gave the following significant answer (p 330):

"A. Yes, I think clearly Mr Miller is a man with a number of difficulties, and I don't think there is (sic) any suggestions that there is no question about his fitness. Obviously the court is concerned about his fitness, hence the proceedings. If I could put him on a scale again relating back to mental impairment one has to show on the balance of probabilities. Now at 52 per cent that is more probable than not; at 48 per cent it is not more probable than not. There is not much difference between them. I think we are of generally consistent views, although we vary on where he fits exactly on that scale. In my view, with the provision of the assistance as I have indicated, I think he would be fit to stand trial. I do disagree with them in relation to the first part, Part A; that is his understanding of the charge. I am satisfied, on my involvement with him previously and recently, that he has an adequate understanding of the charge. He does have some difficulty with the concept of attempt, but I believe it is satisfactory for the purposes of the court. I have expressed my concerns about Part B; his ability to follow the proceedings, to understand the proceedings, but I have expressed my view on how that could be dealt with."

As to the accused's capacity to exercise or give rational instructions about the exercise of procedural rights, both Dr White and Dr Curran agree that the accused's understanding of such matters would be very superficial. He would be capable of understanding that the jury would decide whether he did or didn't "do it". He could be told and understand superficially that as a juror moved from the body of the court to the jury box and moved past him he could say yes or no. However, he is incapable of understanding any concepts associated with the reasoning behind the right to challenge. Although the accused could understand that he could repeat the activity three times, he would be incapable of planning ahead. For example, he could not reason that he should not challenge the first three jurors called because he would not be able to say no to a person later called. His reasoning would be based on impulse and superficial assumptions.

The accused is capable of exercising a choice as to whether to give evidence by saying yes or no. However, he does not have the capacity to grasp any of the rationale behind making such a decision. The accused would be likely to follow the advice of his solicitor because he is suggestible and it would be the easiest option for him. As to a choice between trial by judge alone or trial by jury, the accused can understand at a "very concrete level" the difference between the judge and a group of 12 people, but he is not able to comprehend what the difference really means at a more complex level.

In the view of Dr White, at a superficial level the accused could understand that the proceedings were to decide whether "he did it or did not do it". To the extent that he is incapable of understanding the nature of the charge of attempted rape, however, both Doctors White and Curran were of the view that he would not understand the nature of the proceedings.

Dr White was of the opinion that within the limited capacity to absorb information and to concentrate for lengthy periods, the accused could understand simple evidence to the point of appreciating as he heard it if the complainant said something with which he did not agree. Dr Curran agreed that the accused can follow the spoken language and descriptions of events, but said he would not understand the implication of what was being said. He could understand that he had the right to tell his solicitor if he disagreed with something he heard the complainant say, but he would be likely to minimise the number of times that he would say "I don't understand" or "I disagree" because of not wanting to show up his difficulty with following the evidence. He has the capacity to understand basic facts such as "he grabbed me" or "he pushed me to the ground" and the capacity to say yes or no as to whether such basic facts happened. It would, however, be a very difficult and lengthy process to obtain the instructions requiring experience on the part of the interviewer in communicating with people suffering from mental disorders such as those from which the accused suffers.

In the context of the capacity of the accused to follow the evidence, Dr Raeside gave the following evidence before the District Court Judge:

"A. That's always a difficult one to assess, because clearly, that really relates to how they are at the time in court and the process that is going on. I make my evaluation on that by how well they go in an interview with me discussing all these aspects, and he was able to maintain his attention and conversation for an hour interview and give quite good detail in relation to his alleged offence, as well as these questions, so I think that that's a good indicator that he would, with some assistance, be able to understand the nature of the proceedings and follow them. But, he may need to consult with his counsel regularly to say "what did that mean?", and I think he has the capacity to do that."

At the time that Dr Raeside gave that evidence, he was not in possession of Dr Wood's report concerning verbal learning to which I have referred. The witnesses were not directly asked about the effect of the accused's exceptionally poor retention of information upon his capacity to follow the evidence. The extent of his disability in this regard and its impact upon his capacity to follow the evidence should not be underestimated. While, as I have said, the accused could understand simple evidence to the point of appreciating as he heard it if the complainant said something with which he did not agree, in my opinion within a few minutes of further evidence being given the accused would not have retained that evidence in his memory.

The criteria by which the issue of mental fitness to stand trial is to be determined are set out in s 269H. That section refers to whether an accused is "unable to understand", unable "to respond rationally", "unable to exercise" or unable "to follow the evidence". No guidance is given as to the extent of the understanding or capacities in these respects that an accused is required to possess in order to be fit to stand trial. In Ngatayi v The Queen [1980] HCA 18; (1980) 147 CLR 1, the High Court was concerned with a provision in the Criminal Code of Western Australia that required consideration of whether an accused was "capable of understanding the proceedings at the trial so as to be able to make a proper defence...". In the judgment of the majority, the following observations were made (p 8):

"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 [[1958] V.R. 45, at p.48.] that the test needs to be applied "in a reasonable and commonsense fashion". Smith J. went on to say that there are certain minimum standards which the accused needs to equal before he can be tried without unfairness or injustice, but added that the accused "need not have the mental capacity to make an able defence".

Later in judgment, their Honours observed (p 9):

"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. With the assistance of counsel he will usually be able to make a proper defence. That of course is the test which s.631 provides: is the accused capable of understanding the proceedings at the trial, so as to be able to make a proper defence? The section does not require that an accused, before he can be tried, must be capable of understanding the law which governs his case, if that lack of capacity does not render him unable to make a proper defence."

Assistance is also gained from the decision of Smith J in R v Presser [1958] VicRp 9; [1958] VR 45. His Honour was concerned with determining fitness to stand trial and expressed the test in the following terms (p 48):

"And the question, I consider, is whether the accused, because of 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."

By way of elaboration, his Honour said (p 48):

"He needs, I think, to be able 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, I think, 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. 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."

As mentioned, Dr Raeside is an impressive and experienced witness. However, notwithstanding their tendency on occasions to stretch their support for the case that the accused is mentally unfit to be tried, Drs White and Curran were also impressive in their assessment of the accused's capacities. In particular, I found the evidence of Dr Curran convincing as to the accused's true lack of comprehension concerning the charge. Dr Wood was a careful witness and I unhesitatingly accept his evidence concerning the deficits in cognitive functioning from which the accused suffers.

The accused has consistently demonstrated that he is unable to apply the concept of attempt to the circumstances of the charge against him. While he was able to identify for Dr Raeside that if Dr Raeside swung a punch and missed it would amount to an attempt, and notwithstanding that he is able to repeat that attempted rape is when you want to have sex with a female but do not have sex, in respect of his own situation the accused's thinking is so concrete that all he can say is that he is not guilty because he did not have sex with the woman. The same process of thinking is evident in the earliest of the reports by Dr Raeside dated 6 May 1999. Dr Raeside noted that the accused said he planned to plead guilty to the assault, "but not to the attempted rape because he didn't rape the victim." Some of the answers given by the accused might suggest that he has gained an understanding of the meaning of attempted rape, but in my opinion he has demonstrated that he is unable to apply that concept to the circumstances of the charge against him. In addition, I have no doubt that even at the most basic level the accused is not capable of understanding the concept that "they are saying" that when he tried to have sexual intercourse with the woman he knew she was not consenting or realised she might not be but decided to have intercourse regardless of whether she was consenting or not. Such concepts, particularly in conjunction with the concept of attempting to have sexual intercourse, are beyond the accused's comprehension.

In arriving at my view I have been conscious of the earlier decision of the District Court Judge. However, the additional evidence of Drs Curran and Wood has been significant and has added weight to the evidence suggesting that the accused is mentally unfit to stand trial.

As to other matters identified in s 269H, I have grave reservations about whether the accused is able to exercise, through giving instructions, procedural rights such as challenging jurors or choosing whether to give evidence. However, I cannot say that I am satisfied he is unable to exercise those procedural rights. The accused can understand the nature of the proceedings in the sense that he can understand they are to determine whether he is guilty or not guilty, but his perception of the meaning of guilty or not guilty is based upon his understanding as to the likely consequences. I also have grave reservations as to whether the accused is able to follow the evidence. In view of his disability with respect to verbal learning, in my opinion the combination of the continuous flow of the evidence and the impact of any intervening events strongly suggest that the accused would quickly become lost. He would be unable to follow any evidence that was not of a very simple nature concerning particular events in which he was involved. However, notwithstanding those severe limitations, on the basis that the accused is legally represented and would be given the opportunity of conferring with counsel at regular intervals separated by short periods of time, I have reached the view that the evidence does not satisfy me that the accused is unable to follow the evidence within the meaning of s 269H(c).

Considering each of the sub-sections of s 269H individually, therefore, on the basis that I am satisfied the accused is unable to understand the charge within the meaning of s 269H(a), in my opinion the accused is mentally unfit to stand trial on the charge of attempted rape. Approached in another way, the accused does not meet the minimum standards required in this regard before he can be tried without unfairness or injustice.

In view of my finding concerning mental unfitness to be tried, it is not necessary to canvass the evidence concerning mental competence. It is sufficient to observe that counsel for the accused did not present any submissions in opposition to the view that the evidence failed to provide a sufficient basis upon which I could find, on the balance of probabilities, that the accused was mentally incompetent to commit the offence.