R v Monaghan [2009] ACTSC 61

2. An important constituent to the right to a fair trial is the ability for the accused person to participate in the trial. He or she must be able to comprehend the process whereby he or she is determined to be guilty, or not, of the offence charged. It is said to be a cardinal principle that persons cannot be tried for a crime unless they are in a position to defend themselves and that this includes being in a mental condition to do so: R v Enright [1990] 1 Qd R 563 at 573; R v Dashwood [1943] KB 1 at 4.

3. In this regard, the common law established the steps and processes which the accused must have the capacity to understand, do or know as a minimum for their participation to be such that the trial was fair. In R v Presser [1958] VicRp 9; [1958] VR 45 at 48, Smith J set out these minimum requirements.

4. In Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230, the High Court adopted this approach. In their judgment, Mason CJ, Toohey and Gaudron JJ said (at 245):

Those standards... require the ability (1) to understand the nature of the charge; (2) to plead to the charge and to exercise the right of challenge; (3) to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged; (4) to follow the course of the proceedings; (5) to understand the substantial effect of any evidence that may be given in support of the prosecution; and (6) to make a defence or answer the charge.

5. Those requirements have now been enacted as a statutory requirement in the ACT under s 311 of the Crimes Act 1900 (ACT) (the Crimes Act). That section provides:

311 When a person is unfit to plead

(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.

6. Mr Jonathon Monaghan, the accused, was charged with three offences and on 19 January 2009 was committed for trial.

7. On 25 February 2009 an indictment was filed with the following counts:

1. ...on the 16th day of October 2008 at Canberra in the Australian Capital Territory, Jonathon Monaghan robbed Naheem Haider of $547.90 in Australian currency and twenty five packets of cigarettes belonging to Olmos Investments Pty Ltd trading as Braddon Caltex Service Station and at the time of doing so was in the company of Ricki Rose Murray.
2. ...on the 16th day of October 2008 at Canberra aforesaid JONATHON MONAGHAN dishonestly and without consent drove a motor vehicle, namely a white Ford Courier utility (Queensland registration 168 DEC), belonging to Justin Olde.
3. ...on the 16th day of October 2008 at Canberra aforesaid JONATHON MONAGHAN dishonestly and without consent drove a motor vehicle, namely a green Holden Commodore (NSW registration UWD 722), belonging to Mathew Edwards.

8. It appears that, at committal, a question arose about whether Mr Monaghan was fit to plead. That is unsurprising, since he had earlier been found unfit to plead on a number of occasions. Indeed, in 2004, Dr G George, a Consultant Psychiatrist, who for the past five years or so had been a consultant to ACT Forensic Mental Health Services, reported:

My impression of Jonathon is that he is not Fit to Plead at this stage. He does not understand the workings of the court or court proceedings generally. He has a limited understanding of other aspects of the court process, especially his ability to speak up during the course of any court process. Essentially, he understands most of the criteria, associated with Fitness to Plead but not all of the criteria. He understands his environment at the level of a 13 year old boy who has mild mental retardation.

It does not appear that Mr Jonathon Monaghan has the capacity to understand all the criteria associated with Fitness to Plead. He has mild mental retardation and this is a fact, which is not going to change over his lifetime. His cognitive function is significantly impaired such that many of the higher functions of cognition are not available to him. At the present time he presents as unfit to plead and I believe that he will continue to be unfit to plead indefinitely. He does not suffer from mental illness but could be described as suffering a mental dysfunction in that he has been assessed as suffering mild mental retardation.

10. Where a question is raised at the committal hearing, s 314 of the Crimes Act provides the following:

(2) If the question is raised at the committal hearing -

(a) the committal hearing must be completed; and

(b) the defendant must not be discharged only because the question has been raised; and

(c) if the person is committed for trial - the question must be reserved for consideration by the Supreme Court.

(3) If the question has been reserved under subsection (2)(c) or is otherwise raised in 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 under this Division.

11. As it is clear, where a question has been raised in good faith and the court is satisfied that there is a real and substantial question about the defendant's fitness to plead, the court has no alternative but to proceed as required by the Crimes Act, that is, to reserve the question for investigation: R v Zhang [2000] NSWCCA 344.

12. Apparently relying on s 315(2)(c) of the Crimes Act, it was directed at committal that Mr Monaghan be examined by a psychiatrist or other health professional for the purpose of the investigation which was contemplated under s 314(3) of the Crimes Act.

13. After committal, on 19 January 2009, Mr Monaghan appeared in the Supreme Court at the first directions hearing (r 4733 of the Court Procedures Rules 2006 (ACT)) on 5 February 2009 and, being satisfied that there was a real and substantial question about the defendant's fitness to plead, I reserved the question of the fitness to plead of Mr Monaghan for investigation. It has now come before me for that investigation.

14. The context of the investigation is set by ss 312 and 313 of the Crimes Act which are in the following terms:

312 Presumption of fitness to plead, standard of proof etc

(1) A person is presumed to be fit to plead.

(2) The presumption is rebutted only if it is established, on an investigation under this division, that the person is unfit to plead.

(3) The question of a person's fitness to plead -

(a) is a question of fact; and

(b) is to be decided on the balance of probabilities.

(4) No party bears a burden of proof in relation to the question.

1. Who can raise question of unfitness to plead

The question of a defendant's fitness to plead to a charge may be raised by a party to a proceeding in relation to the charge or by the court.

15. These provisions make some amendments to the common law whereby, for example, the standard of proof depended on whether the question was raised by the prosecution, the defence or the court: R v Donovan [1990] WAR 112. It is clear that the standard of proof is that of the balance of probabilities.

16. Section 315A of the Crimes Act sets out the procedure for the investigation. It provides:

315A Investigation into Fitness to Plead

1. On an investigation into a defendant's fitness to plead -

(a) the court must hear any relevant evidence and submissions put to the court by the prosecution or the defence; and

(b) if the court considers that it is in the interests of justice to do so, the court may -

(i) call evidence on its own initiative; or

(ii) require the defendant to be examined by a psychiatrist or other health professional; or

(iii) require the results of the examination to be put before the court.

2. Before hearing any evidence or submissions, the court must consider whether, for the protection of the defendant's privacy, the court should be closed to the public while all or part of the evidence or submissions are heard.

3. The court must decide whether the defendant is unfit to plead.

4. If the court finds that the defendant is unfit to plead, the court must also decide whether the defendant is likely to become fit to plead within the next twelve months.

17. Mr Monaghan was represented by counsel. Unlike the Mental Health (Criminal Procedure) Act 1990 (NSW), the Crimes Act does not have a detailed procedure for a fitness to plead hearing. It does seem to me, however, that the inquiry is not an adversarial inquiry and that there is no onus of proof on any particular party.

18. Nevertheless, as Penfold J observed in R v Steurer [2008] ACTSC 141 at [13], the real question for decision is whether the person is unfit to plead since s 312(1) of the Crimes Act presumes the person to be fit to plead. That is to say, the presumption must be rebutted.

19. At the hearing, I raised the question of a closed court as permitted under s 315A(2) of the Crimes Act. Neither the prosecution nor the defence sought an order to that effect. It seems to me that the overriding duty of the court to conduct its proceedings in public (see Scott v Scott [1913] AC 417) is not set aside by this provision and in the absence of any particular circumstances requiring the court to be closed having regard to any sensitive or very personal issues relating to the affairs of the accused, reinforced, perhaps, by the right to privacy protected by s 12 of the Human Rights Act 2004 (ACT), the application should ordinarily be heard in open court.

20. I had before me a number of reports. These were as follows:

(a) Report of Dr Graham J George, Consultant Psychiatrist, of 4 February 2004;

(c) Report of Ms Vindi Nanayakkara, Psychologist, of 9 November 2007;

(d) Report of Ms Catherine Huntley, Senior Clinical Psychologist and Ms Jacinta Evans, Speech Pathologist of 3 June 2008;

(e) Report of Professor Kenneth Nunn, Professor of Child Psychiatry of 4 June 2008;

(f) Report of Dr Graham J George of 6 January 2009.

I also had a copy of the Community Care Order of the Mental Health Tribunal made on 5 March 2009 to which was attached a Care Coordinator's Care Plan with reports from Barnardos dated 17 March 2009 and 4 December 2006.

21. In addition, Professor Nunn and Dr George gave oral evidence before me.

22. As I have noted above, in 2004 and 2006, Mr Monaghan was found to be unfit to plead. Since then, however, he has shown a significant improvement in his level of comprehension and understanding of the issues involving court proceedings. No doubt, some of this is related to his increasing familiarity with court processes.

23. The relatively recent report of Ms Huntley and Ms Evans showed an increase in his IQ from 59 to 77 rising from mild to borderline in the level of mental retardation. Dr George also noted an improvement in his comprehension.

24. Nevertheless, his language ability was in particular impaired and he scored below the first percentile in all aspects of language including core language skills, expressive and receptive language abilities. Indeed, he fulfilled the criteria for a diagnosis of mixed expressive/receptive language disorder. His language impairments were above and beyond that expected having regard to his current level of intellectual functioning.

25. Thus, as Professor Nunn put it, there is a real question as to whether Mr Monaghan understood some of the issues even though he might have responded as though he did.

26. While Mr Monaghan's basic functioning had shown an improvement, both Professor Nunn and Dr George were concerned that his adaptive behaviour skills particularly in the area of communication was not at the same level of development. As described to me, this was a question of "how his basic intelligence plays out in his life". In this case, the test given by Ms Huntley and Ms Evans showed that his adaptive behaviour composite were in the moderately low range. This would mean that he was barely able to function effectively. As Professor Nunn put it, "it was enough to get him into trouble but not to get out of it". It would provide him with difficulties regarding problem solving and in interpreting social expectations and meant that he would need guidance and support.

27. The main areas of difficulty for Mr Monaghan in the criminal proceedings he had to face would be in following and understanding the evidence given during the trial. According to Professor Nunn's description, it would be difficult for him to assess the significance of the evidence given and "where things were heading", that is, the import of the evidence. He may be able to understand parts of it - Professor Nunn talked about "islands of understanding" - but would not be able to integrate them and cohesively understand the broad scheme of the evidence in the case. As Dr George put it, his understanding would be "basic and, more than likely, fragmentary".

28. In the light of these matters, the statutory tests for fitness to plead can be assessed having regard to these findings:

(a) Could Mr Monaghan understand the nature of the charge (par 311(1)(a))?

The view of both Professor Nunn and Dr George was that he had a good appreciation of the charges against him. He was able to identify them and understand them.

(b) Could Mr Monaghan enter a plea to the charge and exercise the right to challenge jurors or the jury (par 311(1)(b))?

Dr Nunn felt that he had some ability to enter a plea to the charge but his capacity to anticipate the consequences arising from the plea would be confused and he would be likely to do "what he is told" by his solicitor rather than give meaningful instructions or appreciate why his solicitor would advise him to do something. Dr George, however, indicated that he had a reasonable understanding of the right to challenge jurors and given some scenarios was able to manage those reasonably well. On this criterion, it seems to me that it is more likely than not that Mr Monaghan would not be unfit to plead.

(c) Could Mr Monaghan understand that the proceedings are an inquiry about whether he committed the offences (par 311(1)(c))?

Again, there seems on the assessment of all the reports, that Mr Monaghan would have an understanding of this but at a very rudimentary level. Perhaps this criterion is, in any event, fairly rudimentary and I am not satisfied on the balance of probabilities that Mr Monaghan would be unfit to plead on this criterion.

(d) Could Mr Monaghan follow the course of the proceedings (par 311(1)(d))?

Clearly, Mr Monaghan is familiar with the nature of these proceedings but it seems that he would have significant difficulties in genuinely following them and his rudimentary understanding would mean that he would have to rely very significantly on his lawyer. While many people have difficulty in understanding the somewhat arcane details of criminal proceedings, most are able to understand them if they have their lawyers explain them. It is not necessary for them to understand the substantive law: Ngatayi v The Queen [1980] WAR 209 at 211. In the case of Mr Monaghan, it is unlikely that the explanation would be one that he could really understand and, in particular, that he could understand the consequences of options that are available to him. I am satisfied on the balance of probabilities that on this criterion Mr Monaghan would be unfit to plead.

(e) Could Mr Monaghan understand the substantial effect of any evidence (par 311(1)(e))?

Given his poor concentration, slow cognitive processing and poor receptive skills on language testing, it was clear that Mr Monaghan's grasp would be patchy and highly variable. He would have significant difficulties and, in particular, the pace at which the evidence would be given would, it appears, soon leave him behind. He is likely to let the proceedings run without particular engagement and, even when he was engaged, would have a great difficulty in integrating the material being given and in understanding, in particular, the consequences of the evidence given and the way in which the evidence might point to his inculpation. In my view, on the evidence available, Mr Monaghan would, on this criterion also, be unfit to plead.

(f) Could Mr Monaghan give instructions to his lawyer (par 311(1)(f))?

On this criterion, I find also that Mr Monaghan would have significant difficulties. Although it was not addressed in detail by either Professor Nunn or Dr George, it was clear that the difficulties Mr Monaghan experiences would mean that while at a superficial level he could give instructions following explanations by his lawyers, it was unlikely that he would have a sufficient or comprehensive understanding of the issues involved and, in particular, of the consequences of options available to give proper instructions and that he would lack the language and cognitive skills to give completely proper instructions to his lawyer. In my view, Mr Monaghan was probably not fit to plead on this criterion.

29. Although he would be fit to plead on a number of the above criteria, it is only necessary for him to be unfit in one criterion for the presumption of fitness to be rebutted.

30. Accordingly, I find that Mr Jonathon Monaghan is unfit to plead.

31. That, however, is not the end of the matter. Section 315A(4) of the Crimes Act requires me not only to find whether he is unfit to plead but whether he will be likely to become fit to plead within the next twelve months.

32. In this case, the mental impairment Mr Monaghan suffers is one of intellectual disability rather than a mental illness. In this event, it is true, as was said by Mr M Ierace in Intellectual Disability: a Manual for Criminal Lawyers (Redfern Legal Centre Publishing, 1989) (at 78-9):

The condition of intellectual disability, however, is permanent. Although not 'curable', generally such people may acquire a degree of knowledge and adaptive skills if taught in an appropriate way. Thus theoretically, it may be possible for some intellectually disabled accused who lack the requisite understanding of the court process to acquire such understanding within the 12 month period, so that they would then be "fit to be tried".

Instances where an intellectually disabled person who has been found unfit to be tried becomes fit within 12 months are likely to be rare. If so, the disability is likely to be mild or in the upper moderate range, rather than more severe. Whether it is probable in a particular instance may depend not only upon the degree of disability, but also upon the person's initial level of education, the services (if any) which the [court] anticipates will be made available to the accused in that period and the likely responsiveness of the person to them. One should be extremely cautious if this educative process is attempted. A danger is that the accused will require the word formulae which suggests comprehension of the court process, without in fact acquiring a working understanding of the concepts involved.

33. This becomes significant because Dr George, who has had the greatest longitudinal experience with Mr Monaghan was significantly impressed by the improvement in his condition between his earlier examinations of Mr Monaghan and his recent examination in 2009. He indicated that what he saw in the reports showed that there had been a significant improvement over the last couple of years and while he was still of the view that Mr Monaghan was unfit to plead, he was cautious about whether the improvements he had seen (represented in a very raw way by the increase in his IQ between 59 and 77 - that it is from mild to borderline retardation) would continue and would lead to him becoming fit to plead within twelve months.

34. Professor Nunn only addressed this issue indirectly. He reported:

I do not believe that [Mr Monaghan] can reliably plead without substantial support and time, which is not readily available within the Court process. However, it is likely that within the next five years he may move to such a position.

35. While it is hoped that Mr Monaghan will not need to be assessed for fitness to plead in five years, because it is to be hoped that he will be able to keep away from criminality, this assessment does not really help me to determine the issue I have to decide. While the twelve month period with which I am concerned is within the next five years, it is too long a period for me to extrapolate to answer whether Mr Monaghan will become fit to plead within the next twelve months.

36. On this basis, then, I am not presently able to say, as I am required to do, whether Mr Monaghan will become fit to plead in twelve months.

37. Dr George noted that the neuropsychological testing that had been carried out by Ms Huntley and Ms Evans was now nearly twelve months old. He felt that further testing would be desirable to show whether the improvement had continued and the extent of such improvement. No doubt, it would require a further clinical examination. Dr George, however, made it clear that he would defer to the opinion of Professor Nunn who was more expert in the assessment of young people.

38. Accordingly, it seems to me that I can make a finding that Mr Monaghan is unfit to plead but I cannot at this stage make a finding as to whether he is likely to become fit to plead within twelve months. My inclination is to believe that it is more likely than not that he will not become fit but I cannot make an assumption about that. In my view, it is desirable that the matter should be adjourned so that further evidence, which may involve further investigation, can be obtained about whether Mr Monaghan is likely to become fit to plead within twelve months. It may be that neuropsychological testing of the kind carried out by Ms Huntley and Ms Evans can be repeated and a further examination by Dr George or Professor Nunn (or both) be carried out in the light of the result of that test with a view to Dr George or Professor Nunn (or both) providing a report specifically directed to whether Mr Monaghan is

likely to become fit to plead within the next twelve months. I shall adjourn the proceedings but seek submissions on the precise orders to be made for that purpose.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the respondent: Director of Public Prosecutions (ACT)