R v Richard

Fitness to be tried

1. It is fundamental to our system of law and justice that a person charged with criminal offences be able to understand and if necessary meet and defend that charge. If a person is not fit enough to do so they cannot have a trial according to law. To overcome the problem of ensuring justice is done both for the accused and any complainant, the Mental Health (Forensic Provisions) Act 1990 set out procedures for first determining if a person is fit to be tried and then, if unfit, progressing the matter, with the help of the Mental Health Review Tribunal, by either waiting until they are fit or if it is not likely they will become fit, by providing for a special hearing to be held. At a special hearing evidence can be presented and tested and a judge can find the accused either; not guilty of an offence charged or not guilty on the ground of mental illness or that on the limited evidence available, the accused person committed the offence charged, or that on the limited evidence available, the accused person committed an offence available as an alternative to the offence charged.
2. The issue of Richard's fitness to enter pleas to the indictment has been raised on a bona fide basis by both the prosecution and the defence. Accordingly this Court must as soon as practicable conduct an inquiry in order to determine whether the person is unfit to be tried for the offence: s 10 Mental Health (Forensic Provisions) Act 1990. The question of a person's unfitness to be tried for an offence is to be determined by the Judge alone. Any determination by the Judge under this section must include the principles of law applied by the Judge and the findings of fact on which the Judge relied: s 11 Mental Health (Forensic Provisions) Act 1990.
3. This inquiry will not to be conducted in an adversarial manner. The onus of proof of the question of a person's unfitness to be tried for an offence does not rest on any particular party. Richard is represented by Ms Doosey and the Childrens' Legal Service of the Legal Aid NSW: s 12 Mental Health (Forensic Provisions) Act 1990. Ms Steedman appears for the Director of Public Prosecutions.

The Fitness hearing

1. The inquiry commenced on 21 May 2019. I have been assisted by the reports of Ms Duffy, Ms Jennifer Howell, another forensic Psychologist of 21 September 2018 and Dr Samson F Robert, a General and Forensic Psychiatrist of 20 April 2019: Exhibit A, tabs 3, 4 and 5. There is no issue that each are experts and that each are well respected, with training and experience in their relevant fields.
2. On 19 June 2019 I read an affidavit from Richard's Solicitor, Maria Lynch. Ms Lynch is a solicitor with over 30 years' experience, much of it representing children in criminal proceedings. She deposed to the problems she had in obtaining instructions from Richard and spoke of his incapacity to recall events and retain any memory of important concepts such as the role of a judge, a jury and his own lawyers. Her concern about Richard's fitness caused her to seek the expert opinions of Ms Howell and Ms Duffy.
3. I have also been assisted by submissions from Ms Steedman and Ms Doosey. There is, so far as counsel are concerned, no significant issue. They both submit that at present, and given his intellectual disability for the foreseeable future, Richard is unfit to be tried.
4. I, however, must make my own determination based on all the evidence before me. Ms Duffy's first report raised the possibility that Richard might be able to satisfy the basic criteria of fitness. Accordingly, I adjourned proceedings until 20 June 2019 so that an updated report from Ms Duffy could be obtained. I now have that report, dated 3 June 2019: Exhibit B.

Critical issues

1. The critical issue relating to an accused fitness to be tried were first set out in R v Presser (1958) VR 45 at 48. They were adopted by the High Court in Ngatayi v The Queen (1980) 147 CLR 1 and Kesavarajah v The Queen (1994) 181 CLR 230.
2. In order to receive a fair trial the accused needs: 1. To be able to understand what it is that s/he is charged with. 2. To be able to plead guilty or not guilty to the charge. 3. To exercise her/his right to challenge members of the jury panel. 4. To understand generally the nature of the proceedings, namely that it is an inquiry or trial as to whether s/he did what s/he is charged with. 5. To be able to follow the course of the proceedings so as to understand what is going on in a general sense, though s/he need not of course understand the purpose of all the various court formalities. 6. To be able to understand the substantial effect of the evidence to be given against her/him 7. To be able to make her/his defence or answer the charge. 8. To be able to do this through her/his counsel and solicitor by giving any necessary instructions and letting her/his lawyers know what her/his version of the facts is. And, if necessary, to be able to tell the Court what her/his version of the facts is (although s/he need not be conversant with court procedure or have the mental capacity to make an able defence). 9. To have sufficient capacity to be able to decide what defence s/he will rely on and to make her/his defence and her/his version of the facts known to the Court and to her/his lawyers.

The expert evidence

1. Ms Howell noted that when she examined Richard his cognitive processes appeared compromised in relation to memory, recall and exposition. In relation to sexual matters he presented as immature, with no real understanding or knowledge of potential consequences or issues of consent or legal and social rules. In her opinion, following examination and testing, Richard has a "mild intellectual disability". She said he "struggles to effectively communicate his own thoughts and feelings." Ms Howell did not directly address the fitness for trial criteria. The focus of her report was on Richard's behavioural issues and risk management.
2. Dr Roberts did address the fitness criteria directly. During his examination Dr Roberts explained a number of important concepts and then asked Richard to what his understanding of them was. Richard was not able to repeat let alone show and understanding of concepts such as "judge", "jury'" or "guilty and not guilty."
3. Dr Roberts had the benefit of the results of the testing results set out in the reports prepared by Ms Duffy and Ms Howell. He concluded that even with considerable support Richard's ability to learn information at a level sufficient to participate in a court process is doubtful even if he were given support and explanations.
4. Richard, he said, could not engage with sufficient sophistication in what could become a complex legal process. In particular he noted that Richard was such an unreliable and poor historian that any information presented by him to his lawyers could not be relied upon.
5. Applying the Presser criteria he concluded that Richard was not fit to stand trial. He does not understand the nature of the charges against him and could not have understood the implications or ramifications of a guilty plea as against a not guilty plea. Dr Roberts did not expect that Richard could adequately participate in a criminal trial even if given extensive support and breaks.
6. Ms Duffy was of the belief that Richard understood the nature of the charges but was reluctant to discuss them as he was able in a limited way to discuss sexual matters with Ms Howell. She noted however that his deficits in communication and his well below average verbal comprehension and working memory results had implications for his capacity to follow the course of a trial. He would have trouble understanding the nature of the evidence, instructing counsel and making a defence to the charges. She said Richard would have difficulty communicating with his lawyer and giving his version of the facts, as he tends to confabulate and give versions of events that are inaccurate and fit in with his perceptions and desires rather than reality.
7. She said however, that if given additional assistance to accommodate his many needs he may if things were expressed in simple language be able to meet the fitness criteria. A support person, if available, and sympathetic management of the court proceedings could contribute to this understanding.
8. In her supplementary report Ms Duffy said the main issue seemed to be Richard's capacity to adequately instruct counsel given; his reluctance to discuss the matter now appears entrenched, his poor working memory and verbal comprehension and his tendency to confabulate. Her original opinion, she said, was based on the assumption he would receive support and assistance and explanation. Given Dr Roberts conclusions and the particular difficulties in Richard's capacity to instruct his lawyers or follow the course of the trial "in spite of extensive support" (her emphasis), she is now of the opinion that Richard fails the fitness criteria and is not fit to stand his trial.

Resolution

1. The fitness tests are directed to the minimum requirements for a fair trial. So long as the accused can understand and follow the proceedings, in each of its facets, can give appropriate instructions and present a proper defence to the charge, he or she is to be regarded as fit to be tried.
2. Just because an accused has an intellectual disability does not mean they are, as a direct consequence of their disability, unfit to stand trial. Just because a matter is complex and serious, as here, does not preclude an intellectually disabled accused participating in and understanding the proceedings and given instructions whether to defend the matter or plead guilty. Generally extensive support will be needed but courts can be flexible in how much time is allocated to the trial each day and in the procedures to be adopted. Just because difficulties might arise do not mean a fair trial is impossible. See for example R v Andrew [No 1] [2018] NSWDC 381
3. Here I am confident however that the parties and the experts involved have given these issues anxious consideration. Special measures will not help Richard understand or participate meaningfully in the trial.
4. Accordingly, I find as a fact that Richard is not, at present, able to make a defence or answer the charge. He is not able to do this through his counsel because he cannot reliably give necessary instructions or let his lawyer know what his version of the events in question are. Should it become necessary, he does not have the capacity to tell the Court what his version of events is. He does not have sufficient capacity to decide what his defence will be, to make a defence, or to properly enter a plea of guilty to the charge.
5. In those circumstances, I find that the Richard is not fit to stand trial. As a consequence, these proceedings cannot be continued and I must refer this matter to the Mental Health Review Tribunal for determination, pursuant to s 16 Mental Health (Forensic Provisions) Act 1900 and I make that order.
6. Before I finalise these proceedings I will make orders as to the next disposition of the matter and continue bail. I will hear from the Crown and Ms Doosey as to whether any variations of the bail conditions are required.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 June 2019