R v R [2003] VSC 187

5. It was in August 2001, that Mrs K with her husband and three sons, became neighbours of R. They moved into the house next to where R had lived with his mother for many years. Mrs K learned from other neighbours that R was deaf and, in other respects, somewhat different. When Mrs K, then aged 41, first met R, then aged 35, she greeted him as neighbours do. He did not respond to her greeting.

8. In August and September, there were a number of unneighbourly incidents. K's sons reported to her that R had abused them when they were playing. They had been playing on a bike path, which runs along an embankment which is at the rear of the neighbouring properties. Shortly after that, one of Mrs K's dogs got out of the K's property. It was recovered limping from the R's property. On 8 September, Mr K used a chainsaw to cut back the tree overgrowth on the strip of land between the embankment and the K's property. As he was doing so, R and R's mother approached Mr K. They asked him what he was doing, and he explained. They exhibited some dissatisfaction at the cutting down of the trees. R went back into the backyard of the R's property. Mrs K came onto the embankment to see what her husband had done. As she stood there, R pointed at her and made a gesture. In a slicing action, R drew his finger across his throat. The next morning, Mrs K found that her car had been daubed with swastikas. Inferring that R was responsible, Mrs K took the car to the Chelsea Police Station. Senior Constable Tracey Brown took photos of the car. She prepared a statement with each of Mrs K and her husband. She helped them make application for an intervention order directed at R. A few days later, Senior Constable Brown saw R passing the police station on foot. She went out and asked him questions. After getting some formal details, she gave him the usual caution. She asked him if he understood it, and he said yes. She asked him further questions about the painting of swastikas on Mrs K's car. He admitted that he had been responsible. He repeatedly said to her that the trees should not have been cut down. R was served with the papers relating to the application by Mrs K for an intervention order. Things were then quiet for nearly two months. Indeed, on one occasion, when there was contact, R said to Mrs K that he wanted to be her friend.

11. On 1 November 2001, between 3.30 and 4 p.m., Mrs K arrived home. She went into her back yard. She saw on the ground two pieces off the paling fence between the K's property and the R's property. They were triangular pieces about half a metre long. There were corresponding gaps in the fence. She inferred that R was responsible for the damage. She strode onto the R's property. She kicked on the R's front door. R and his mother opened the door. Mrs K loudly accused R of breaking the fence. Mrs K loudly demanded of R's mother what was to be done with him. R moved away from the door. Mrs K kept talking loudly at R's mother. Mrs K was still holding the pieces of palings. R returned to the doorway. He had a knife, and with it he stabbed Mrs K. She used the pieces of paling fence to evade more blows. She hit R on the hand, forcing R to let go of the knife. Mrs K was treated at hospital for the life-threatening injuries she suffered. R was treated at hospital for the injury to his hand. R was spoken to by a detective after he received treatment, with a view to his being interviewed. The detective quickly realised that R had major trouble communicating. The detective opted not to proceed with an interview. R was charged with the attempted murder of K.

14. Because of R's disabilities, two things were quickly appreciated. The first was the need for a "deaf interpreter" at any hearing. Because of his intellectual disabilities, R is slow in the use of Auslan and lip reading. However, R appears to benefit from the use of an interpreter. Interpreters were provided at all court hearings. The second was the prospect of the application to R of provisions in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ("the CMI Act"), both as to his fitness to be tried and as to his possibly having a defence of mental impairment open to him. A number of provisions in the CMI Act have had to be considered in the context of two hearings before me and two different juries. The CMI Act addresses a number of difficult issues of a mixed legal, social and management character. Two of those issues are apparent from the title to the CMI Act. The defence of insanity was abrogated in Section 25. Part 2 of the CMI Act provides a regime for dealing with the position of an accused who was potentially not fit to be tried. Part 3 of the CMI Act provides for a defence of mental impairment, and a regime for dealing with persons found not guilty on the grounds of mental impairment.

17. On 11 and 12 April 2002, following a committal hearing, R was committed for trial in this court. Before a trial date was set, the opinion of Dr Lester Walton, an experienced forensic psychiatrist, was sought. In June 2002, Dr Walton interviewed R. Dr Walton reported that communication with R was a challenge. He expressed the opinion that it was difficult to reach accurate conclusions as to the level of R's intellectual disabilities. With reservations, he concluded that R was fit to be tried, and "perilously close" to having a defence of mental impairment. Dr Walton was later to modify those opinions. That came about partly because of what happened in court, and partly because of information which came before Dr Walton and the court from other experts.

20. As to what happened in court, I will provide first an outline of what occurred overall. Later, I will provide more detail. On 24 and 25 September 2002, upon the assumption that R was fit to be tried, there was pre-trial argument before Bongiorno J. On 25 September 2002, Bongiorno J ruled that certain evidence which the prosecution sought to lead, could be led. On 26 September, Bongiorno J concluded that there was an issue as to R's fitness to be tried. On 1 November 2002, an application for bail was made before Bongiorno J. The application was not granted. On 16 December 2002, a jury, empanelled to decide as per the CMI Act on R's fitness to be tried at a hearing on which I sat, found that R was not fit to be tried. On that day, I made an order, under Section 12, that there be a special hearing under Part 2 of the CMI Act. Between 3 - 5 March 2003, evidence was led and there was argument as a prelude to the special hearing. I made certain rulings, the reasons for which I provide below. The special hearing proceeded before a jury between 6 March and 14 March 2003. On 14 March 2003, the jury returned a verdict of not guilty on the charge of attempted murder of Mrs K, and not guilty on the grounds of mental impairment on the alternative count of intentionally causing serious injury to Mrs K.

23. The transcripts of the various hearings involving R reveal that the conduct of R in court has at times been perplexing. That was so, more in the early stages. I say that because I witnessed only one bizarre interruption. At the committal, R interrupted proceedings, asking inappropriate questions or making inappropriate comments. Before Bongiorno J, R went into the witness box, and was asked questions. R's communication problems were then manifest. Instead of proceeding to trial, as had been planned, Bongiorno J made a number of orders, including as to there being: a hearing as to R's fitness to be tried; a hearing of an application for bail; and examinations by further experts, with experience and expertise in dealing with deaf patients.

26. The problems encountered by the psychiatrists and others in obtaining a history, and in making assessments, including of the level of intellectual disability, were great. I have noted above the concerns of Dr Walton at his interview. Similar problems were encountered by the further experts, Dr O'Sullivan, Ms Rodriguez, both of whom had to travel from New South Wales to interview R, and Ms Bridge. Those three saw R in November 2002. Dr Bell saw R in February 2003. All the experts noted their concerns as to the reliability of information that they obtained from R, because of the communication difficulties. Those difficulties have been compounded by other social and communication problems. When R uses a hearing aid and the other person to the conversation speaks slowly and clearly, there can be a form of communication. Use of an interpreter can assist when there appears to be a risk of misunderstanding. However, R's lip reading and sign language skills are not well developed.

29. I turn back to the hearings before Bongiorno J. They proceeded upon very different assumptions to those later seen to be appropriate in the light of the further expert opinions. Ms Randazzo, who has appeared at all times for R, made submissions to Bongiorno J to the effect that certain aspects of the prosecution case should not be admitted into evidence. She argued that no evidence should be led from Mrs K and Mr K as to certain of the events in August and September, including as to the abusing of Mrs K's sons, the loss and return of Mrs K's dog, the throat slicing gesture, the daubing of swastikas on Mrs K's car, the interview of R by Senior Constable Brown and the obtaining of the intervention order. Bongiorno J ruled against excluding the material as irrelevant. Ms Randazzo then sought to have Bongiorno J exclude it on discretionary grounds. That meant taking evidence on a voir dire. Senior Constable Brown and another policeman were called and cross-examined. Ms Randazzo called on R to go into the witness box. Questions were put to him by Ms Randazzo, by Mr Gyorffy prosecuting and by Bongiorno J. The extent of R's communication problems then became manifest. There was lengthy discussion as to how the matter should then proceed. There were further mention hearings before Bongiorno J on 11 and 23 October 2002. Bongiorno J made orders including that there be an expeditious hearing of an application for bail, that further specialist examinations be arranged, and that there be an expeditious hearing of the issue of whether R was fit to be tried.

32. On 1 November, Bongiorno J heard the application for bail. Bongiorno J then had before him the report of Dr Walton. R had spoken with Dr Walton as to a previous conviction of R for causing serious injury. Although I note that the report refers to a conviction for intentionally causing serious injury, I also note that the further presentment refers to a conviction in 1994 for recklessly causing serious injury. R said that he had become upset on being asked to leave a TAB agency, and had punched a female attendant. Considerable further material was placed before Bongiorno J. Included was material relating to: an unsuccessful attempt to have R accepted as a person entitled to services under the Intellectually Disabled Persons' Services Act 1986 ("the IDPS Act"); training that could be provided for R by Vicdeaf; the possibility of R being placed in an inner-city home under a form of light supervision; and various incidents involving or apparently involving R over a number of years prior to 1991. It appeared that a number of former neighbours or near-neighbours of R had had occasion to at least express concern to police at activities of a trespassing or stalking nature attributed to R. Two had obtained intervention orders, one in 1996, the other in 1998. Three had complained of having seen R produce a knife on the street. As Bongiorno J pointed out, that material was not tested before him. Bongiorno J rejected the application for bail. He noted that it was anticipated that there would be an early hearing as to R's fitness for trial.

35. On 4 and 5 November 2002, R was seen and assessed in prison by Ms Rodriguez. She is a psychologist from Wollongong with extensive experience working with the deaf. She experienced similar communication problems to those experienced by Dr Walton. She spent more than 14 hours administering tests to R that normally would be administered in less than 4 hours. On 24 November, R was seen and assessed again by Ms Rodriguez, but this time with Dr O'Sullivan from Sydney and Ms Bridge from Victoria, the latter a specialist in linguistic skills. Dr O'Sullivan is a psychiatrist with extensive experience in dealing with deaf patients. Reports provided by Dr O'Sullivan, Ms Rodriguez and Ms Bridge were placed before the Court on 16 December 2002. On that date, Bongiorno J was unable to preside, and I sat instead. I read the reports. The reports strongly supported the conclusion that R was not fit to stand trial. A jury was empanelled to carry out an investigation into R's fitness to stand trial. The procedure spelt out in Section 11 of the CMI Act was followed. Evidence was given by Dr O'Sullivan, Ms Rodriguez and Ms Bridge. Dr Walton was in court. He heard their evidence, but was not called to give evidence himself. The jury found that R was not fit to stand trial. I determined, under Section 12 of the CMI Act that R was not likely to become fit to stand trial within the next 12 months. I directed that a special hearing under Part 3 of the CMI Act be held. That special hearing was listed for 3 March 2003. On 17 February 2003, R was seen by Dr Bell. Copies of his report were provided to Drs Walton and O'Sullivan.

38. Drs Walton, O'Sullivan and Bell all agreed that R had no recognised psychiatric illness. Drs Bell and Walton expressed substantially the same opinion as to the broad character of R's abnormality which gave rise to the effect that at the time he stabbed Mrs K, he did not, in their opinion, know that his conduct was wrong. The abnormality was a combination of intellectual disability, frontal lobe impairment and communication difficulties. Individually, they were insufficient, but collectively they sufficed.

41. On 4 March 2003, evidence was taken on a voir dire before me from Drs Bell and Walton. Submissions were made to me subsequently as to the making of a number of rulings. I will briefly refer to those other than as to the main "mental impairment" issue. Mr Gyorffy submitted that the accused should not remain in court during the special hearing. He submitted that the finding of the first jury left R with no role to perform at a special hearing, and that the character of R's actions in court on previous occasions had been such as to indicate that there was a risk that R's presence in court might distract the jury from their role. I declined to rule that R be excluded from the court. Section 16 contains a number of provisions as to the procedure at a special hearing. No provision is directly on point. There is a solution provided to most of the more obvious hurdles. Part of the solution is to shift responsibility to the defendant's lawyer for the jury challenge process. How far that the lawyer's responsibility also extends is a concern that I have. I raised that concern with Ms Randazzo. As to the instant issue, to my mind, sub-section (1) most clearly provides direction as to the right path. It requires a special hearing to be conducted as nearly as if it were a criminal trial. I treat the position as one calling for a discretionary decision. Only in exceptional circumstances would I be disposed to exclude from a special hearing a defendant who wished to be present and non-disruptive. That result accords with basic principles of fairness. It most closely complies with the CMI Act. It recognises that even a defendant found unfit to be tried may be capable of providing guidance of some value to a lawyer representing him or her.

44. Ms Randazzo foreshadowed the making of a number of submissions, including that I should revisit the ruling of Bongiorno J as to the relevance of pre-November 2001 events, and that I should address the unfinished business of ruling as to the exercise of the unfairness discretion to exclude the evidence of Senior Constable Brown. She also foreshadowed that she would be seeking to have the jury told that it could treat evidence of matters stated by R to the expert witnesses as evidence of the truth of what was said. None of those three matters was argued at length. Essentially, that was because of the impact on other evidence of aspects of the evidence given by the four experts. More specifically, Drs Walton, O'Sullivan and Bell and Ms Rodriguez had spent a lot of time getting from R what they each regarded as imperfect answers to questions. They got imperfect answers as to the events of 1 November 2001, including as to R's state of mind, as to events before November, and as to various other matters. Compartmentalising the relevant and the irrelevant for the purpose of a trial can often be a difficult exercise. In the circumstances of this case, it was clearly much more difficult than usual. There were other factors at play to which I have not earlier referred. Mrs K and her husband had their reasons for implicating R in events other than those to which I have referred. As to that, there was not necessarily admissible evidence. R had his reasons for being dissatisfied with the local council and the police, as to how they handled complaints that he made to them. These matters were touched on in the course of the questioning of R by the four experts. I referred counsel to the additional compartmentalising problems and indicated a preference for proceeding on certain premises, without extended argument, but noting that there was persistence in some objections. The first premise was that Bongiorno J's ruling as to the relevance of the earlier matters would continue to apply. The second premise was that the evidence of Senior Constable Brown would be admitted. It was clear, with the benefit of hindsight, given what I had learned of R's disabilities, that Ms Brown's assessment of R was misguided. That did not mean that the evidence should be excluded as unfair. The third premise was that, given the circumstances of this case, the jury would be told that it could treat the evidence of what R said to the four experts, not just as history as a basis for opinions, but also as evidence of the facts stated. As to that third premise, I substantially adopted the propositions set out by Prior J at pages 478-9 in Pangallo (1989) 44 A Crim R 462.

47. I turn to the main issue. Ms Randazzo put to me that on the evidence before me, the issue of mental impairment should not be left to a jury. In short, she submitted that the condition or disabilities of R did not amount to "mental impairment" as per Section 20 of the CMI Act.

50. I set out Section 20, with my bold and italicised highlighting of the words "mental impairment":

(1) The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that - (a) he or she did not know the nature and quality of the conduct; or (b) he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).

54. The words "mental impairment" are not defined in the CMI Act. They do not mean the same where they appear in bold as they do where they appear in italics. "Insanity" could be substituted for the words in bold, but not for the words in italics. "A disease of the mind" could be substituted for the words in italics, but not for the words in bold.

57. Section 35 of the Interpretation of Legislation Act 1984 permits consideration to be given to proceedings in Parliament. On 18 September 1997, Hansard p 187, the then Attorney General, in her Second Reading speech said:

"The term `insanity' has been replaced by the term `mental impairment' because the former term is antiquated and carries an historical stigma. However, it is important to note that the bill does not alter the existing common law in relation to determining criminal responsibility or unfitness to be tried. The common-law test of insanity derives from the M'Naughten rules of 1843 and the test for unfitness derives from the decision of the Supreme Court in R v. Presser. Both these common-law tests have been incorporated into the provisions of the bill. The bill makes it clear that the new defence of mental impairment has the same meaning as the defence formerly known as the defence of insanity and is to be interpreted accordingly."

61. The explanatory memorandum accompanying the Bill included:

"Clause 20(1) sets out the criteria which must be satisfied in order for a person to satisfy the defence of not guilty because of mental impairment. The criteria is a codification of the common law test provided in the M'Naughten Rules of 1843 and endorsed by the High Court in The King v Porter [1933] HCA 1; [1936] 55 CLR 182."

65. In her Second Reading speech, The Attorney-General also said that the CMI Act took account of the 1995 report of the Model Criminal Code Officers Committee. Reference was made during debate in Parliament to the 1995 report of the Community Development Committee of the Parliament of Victoria entitled Inquiry into Persons Detained at the Governor's Pleasure. I have read, but accept that this is not the place to review, the M'Naghten Rules, Porter, the two reports just noted, and other materials, including four articles: "A Legacy of Hadfield, M'Naghten and Maclean", Sir Owen Dixon (1957) 31 ALJ 255, Mental Impairment and Criminal Responsibility: Recent Australian Legislative Reforms Bernadette McSherry (1999) Criminal Law Journal 135, Development and Change in Insanity and Related Defences, C R Williams, 2000 MULR 711, and "Reform of the insanity defence: Theoretical issues" Helen Howard: (2003) 67(1) J Crim L 51, and another report: "Mental Malfunction and Criminal Responsibility" Law Reform Commission of Victoria, 1990. Various positions have been taken, including as to the appropriateness of the use of the words "mental impairment" or "disease of the mind" or some other formulation, and whether the words should be defined, and if so, how. As noted earlier, Parliament chose to use "mental impairment" but not to provide a definition. There is not in the CMI Act even the inclusive definition in the Model Criminal Code, which definition has been adopted elsewhere, which includes as "mental impairment" both intellectual disability and brain damage. Given the whole scheme of the CMI Act, and particularly the provisions as to "forensic residents" as distinct from `forensic patients", it is clear that persons with an appropriate level of intellectual disability are catered for in a similar but different way from persons with an appropriate mental health problem. There is nothing in the CMI Act to suggest that any person with a hearing disability is catered for in any way.

68. Before me, it was accepted that, put shortly, "the common law applied". In The Queen v Falconer, [1990] HCA 49; (1990) 171 CLR 30, and particularly at 49, 53 and 54, there was a thorough review by the High Court of the position as to insanity at common law. I treat the basic principles there outlined not to have been altered by the CMI Act. First, it is necessary for the trial judge to determine what is meant by the terms used to describe the mental condition of the person in question at the relevant time. Secondly, the malfunction of the mental faculties must result from an underlying pathological infirmity of the mind, which can properly be treated as mental illness, as distinct from the reaction of a healthy mind to extraordinary external stimuli.

71. From The Queen v Hawkins [1994] HCA 28; (1994) 179 CLR 500 at pages 508, 510 and 517, I have drawn a number of propositions. That was a case where counsel for the defendant did not want insanity left to the jury. In stating the propositions, I have substituted the relatively comparable words in the CMI Act for those used in Hawkins:

1. A trial judge must determine whether there is evidence capable of supporting a verdict of not guilty on the grounds of mental impairment. If so, the trial judge must leave that verdict to the jury 2. A trial judge must characterise the abnormality in order to determine whether the connexion, if any, between the alleged abnormality and the doing of the act falls for consideration as a question of mental impairment. 3. The evidence must be capable of proving that the abnormality was a mental impairment and that it produced either of the effects prescribed by Section 20(1)

75. Mr Gyorrfy submitted to me there was evidence available to support the conclusion that R came within Section 20 of the CMI Act, given that the evidence was that R suffered from brain damage, intellectual disability and profound hearing loss as a result of his brain damage, and given that the malfunctioning of R's reasoning process was a permanent condition likely to recur. Ms Randazzo submitted that, in the light of what Drs Bell and Walton had said to the effect that individually each of the disabilities of R did not amount to a disease of the mind or mental impairment, together they could or should not do so. She put that there were dangers associated with the law expanding the concept of mental impairment to include persons who have a constellation of disabilities, with no one of itself being a disease of the mind.

78. What is the relevant characterisation of the abnormality of R? There is what I treat as being a subtle but significant difference in the evidence as to R's brain damage and intellectual disability as between, on the one hand, Drs Bell and Walton, and on the other hand, Dr O'Sullivan and Ms Rodriguez. Drs Bell and Walton have opined that the abnormality as assessed by them produced the effect prescribed by Section 20(1)(b). I have noted above aspects of what the doctors said in their reports. Dr O'Sullivan, in the evidence he gave at the unfitness hearing on 16 December 2002, elaborated. What he said then included that there was no evidence of R having a formal psychiatric disorder such as schizophrenia. R was said to have been born blue at birth, and Dr O'Sullivan said that he assumed that to represent a prolonged hypoxic episode. He and Ms Rodriguez estimated R's IQ at 65 to 70. He opined: that R had intellectual disability, and deafness, poor communication skills, and no reading skills; that R had a pronounced frontal lobe injury; that R's predominant symptomatology, global mental retardation, was frontal lobe impairment; and that R may appear a little more with it in lay terms than he actually is.

81. In evidence before me, Dr Bell spoke of his accepting, after noting the evidence of Dr O'Sullivan and Ms Rodriguez, that R had a minor degree of intellectual disability (my emphasis). Asked to expand on that, he said that he would have placed R in the borderline to mildly intellectually disabled area, with an IQ in the high 60s or low 70s. Shortly after that, Dr Walton said in evidence that, after hearing the evidence of Dr O'Sullivan and Ms Rodriguez, he concluded that R's intellectual disability was much milder than he had anticipated when he wrote his report (my emphasis). In his report, Dr Walton had said that he suspected R was not likely to be recognised as an eligible person under the IDPS Act. He went on to express the opinion that it would be grossly inappropriate to place R in an institutional facility for the intellectually disabled, especially given his marked communication difficulties.

84. Not surprisingly, Ms Randazzo's argument proceeded upon the basis that I would accept the minor and milder assessments of Drs Bell and Walton. She indicated to me that those assessments appeared to be reinforced by an assessment made of R by persons linked to the provision of services under the IDPS Act. No evidence or report as to that assessment was then before me.

87. My approach is not predicated upon the acceptance of the evidence of Drs Bell and Walton of a minor, mild or milder intellectual disability. Indeed, I prefer to characterise the abnormality in accordance with the evidence of Dr O'Sullivan and Ms Rodriguez that there is an intellectual disability, to which they have not attached an adjective such as mild or minor. Both Dr Bell and Dr Walton deferred to the Sydney experts. That is not surprising, given their greater expertise in the matter of assessing the state of a hearing-impaired person, given the extra period of time they collectively spent with R, and given that Ms Rodriguez alone administered psychological tests. It seems that the only factor apparently involved in Drs Bell and Walton opting to speak of mild and minor was impression based on interview.

90. The evidence of Dr O'Sullivan and Ms Rodriguez is, on my assessment, of more than a mild or minor intellectual disability. I hesitate to use any particular adjective. For want of a more precise word, I will use significant. The intellectual disability may or may not satisfy the requirements of the IDPS Act. In short, to qualify to receive services under the IDPS Act, there must be, along with significant deficits in adaptive behaviour , an IQ of more than two standard deviations below the mean. See Sections 3 and 8 of the IDPS Act. That translates to an IQ of about seventy or less. On the evidence of Dr O'Sullivan and Ms Rodriguez, R would, or at least, should qualify. And that would be without taking account of the major hearing and other communication disabilities.

93. I was well satisfied that there was before the court evidence that R had a significant intellectual disability which satisfied the Falconer criteria to be a form of mental impairment under Section 20 of the CMI Act. It was not necessary for me to consider the alternative scenario as to whether there was evidence of a mental impairment under Section 20 of the CMI Act because of the combination of a significant hearing disability and a less than significant intellectual impairment.