(2007) 175 A Crim R 221
R v Sed [2005] 1 Cr App R 4
Source
Original judgment source is linked above.
Catchwords
(2007) 175 A Crim R 221
R v Sed [2005] 1 Cr App R 4
Judgment (2 paragraphs)
[1]
Judgment - ex tempore (revised)
In the course of the cross-examination of the Crown's principal witness Fortunato Gattellari ("Fortunato"), questions were put to him in which it was effectively alleged that he had stolen moneys from the accused over a period of time, some of which he had given to his brother, Rocky Gattellari ("Rocky"). As a consequence, senior counsel for the accused asked the Crown to call Rocky, and make him available for cross-examination. The Crown's position was that Rocky was not competent due to the fact that he suffers from Alzheimer's disease and that accordingly, he would not be called. In doing so, the Crown made it clear that that was the only factor which caused it to take that position and that if Rocky were found to be competent, he would be called to give evidence.
It is in those circumstances that I have been asked to determine the issue of Rocky's competence to give evidence. In relation to that issue, the following documents were tendered:
1. a report of Dr Susan Pulman, Forensic Psychologist and Clinical Neuropsychologist, of 16 March 2018 which had been provided to the Director of Public Prosecutions (Exhibit A);
2. a statement of Det Sgt Howe of 25 January 2018 (Exhibit B);
3. a certificate of Dr Ryan, GP dated 16 January 2018 (Exhibit C);
4. a statement of Det Sgt Howe of 20 March 2018 (Exhibit D); and
5. a statement of Det Sgt Howe of 10 July 2017 (Exhibit E).
Before I come to the report of Dr Pulman, it is appropriate to summarise the balance of the evidence before me.
Exhibit E, which is the statement of Det Sgt Howe of 10 July 2017, records that on 4 July 2017 he contacted Rocky by telephone and spoke briefly with him, requesting to meet him with a view to obtaining a statement. Det Sgt Howe explained to Rocky at that time that he was making inquiries into a property that he once owned which was located on the Central Coast of New South Wales. It had been suggested to Fortunato in cross-examination that he stole moneys from the accused and provided them to Rocky for purposes associated with that property.
On that occasion, Rocky said to Det Sgt Howe:
"Absolutely I do not want to talk to you about this. I had nothing to do with this and I do not want to talk to you about it."
On 16 January 2018 Dr Karen Ryan, a General Practitioner at Coogee, issued a certificate in which she stated Rocky was a well-known patient of hers and that there had been "considerable concerns" over his memory for the past several years. She went on to state:
"He has exhibited signs of early memory loss and inability to recall past events accurately. It is my opinion that he is not medically fit to be called to give evidence in a court room situation. He also suffers from high blood pressure and is diabetic. The stress would exacerbate these conditions."
I mean no disrespect whatsoever to Dr Ryan when I say that for the purposes of determining the current issue, her certificate (Exhibit C) is of limited weight.
Exhibit D, the statement of Det Sgt Howe of 20 March 2018, records that on the morning of 16 January 2018 (being the date of Dr Ryan's certificate) he met with Rocky, at which time concerns were expressed by Rocky's daughter regarding his memory and mental capacity. Rocky's daughter indicated that she would take him to a General Practitioner for advice in relation to his capacity to appear as a witness in court. It is obvious that it was following that conversation that Dr Ryan was consulted and the certificate (Exhibit C) issued.
Exhibit D records that Det. Sgt Howe met with Rocky and his daughter early in the afternoon of 16 January 2018. Detective Howe stated that in the course of his conversation with Rocky he observed him "to appear confused and have a poor memory of events". In particular, Det Sgt Howe noted the following:
1. he asked Rocky if he had ever owned a property on the Central Coast. Rocky replied "no", but was corrected by his daughter;
2. he asked if he had ever met the accused. Rocky replied that he had met the accused at a New Year's Eve function at Ingleburn, and was corrected by his daughter that the function was in fact at Point Piper;
3. he asked Rocky if he had ever been loaned large sums of money from his brother Lucky, or the accused, for the purchase of property. Rocky indicated that he did not remember doing that. In a supplementary statement (Exhibit B) Det Sgt Howe stated that during his conversation with Rocky he had "formed a view" regarding his (Rocky's) ability to accurately recall events and incidents that occurred some time ago.
I am prepared to accept that those were Det Sgt Howe's general observations, although I accept the submission of senior counsel for the accused that they cannot be elevated to a medical opinion.
Against that background, the Crown obtained a report from Dr Pulman, which is exhibit A. The opening paragraph of that report is material for present purposes and is in the following terms:
"Thank you for requesting an opinion on Mr Rocky Gattellari's capacity to give evidence. I understand from your letter of instruction dated 9 March 2018, that Mr Gattellari is a potential witness in the abovenamed trial and concerns have been raised over his memory and mental capacity. You have requested the report address the following:
(i) Whether Mr Rocky Gattellari has memory problems;
(ii) If he does have memory problems, whether he is fit to give evidence."
The letter of instructions to which Dr Pulman referred was not tendered before me. However, the terms of those instructions can obviously be inferred from the above extract from Dr Pulman's report. The references in those instructions to "memory problems", and whether Rocky is "fit to give evidence", are somewhat nebulous. As I observed in the course of the hearing of this application, Dr Pulman was not asked the correct question(s) when she was given instructions. She should have been asked to express her opinion by reference to the provisions of s 13 of the Evidence Act 1995 (NSW) ("the Act"), to which I will return.
In her report, Dr Pulman recorded (at p 4) part of the history provided by Rocky regarding his cognitive functioning. She stated, amongst other things, that he had described his memory as "not as good as it used to be", as a result of which she formed the view that Rocky "did not appear to have insight into the extent of his memory difficulties."
At p 5 of her report Dr Pulman outlined the nature Alzheimer's disease in the following terms:
"The primary clinical manifestation Alzheimer's disease is a progressive global dementia syndrome (i.e. ages 60 to 70). Typically, the syndrome is characterised by prominent amnesia with additional deficits in language and semantic knowledge, abstract reasoning, executive functions, attention and visuospatial knowledge...The earliest changes occur in the medial temporal lobe structures that are critical for episodic memory (remembering events). Neuropsychological evidence demonstrates that episodic memory impairment (i.e. amnesia) is usually the earliest and most salient aspect of the Alzheimer's disease dementia syndrome (AD). Studies have identified characteristics that have been shown to be effective in differentiating mildly demented Alzheimer's disease patients and normal older adults."
Given Rocky's history of amateur and professional boxing, Dr Pulman also stated (at p 5):
"Greater exposure to head trauma is associated with an increased risk of long-term neurological diseases such as Alzheimer's disease and a variety of imaging findings can be seen in retired boxers."
In terms of her cognitive assessment of Rocky, Dr Pulman reported (at p 6) as follows:
"Mr Gattellari's ability to learn verbal information was impaired. His ability to learn a list of words over repeated trials fell within the extremely low range. He did not benefit from repeat presentations. His ability to recall the information following distraction and brief delay was poor. He was unable to recall any of the information after a twenty-minute delay. His recall did not benefit from semantic prompts or cues. In a forced choice recognition format his performance was poor. Words he was able to recall showed a primacy effect. He displayed intrusion errors.
His ability to recall short narrative passages of information was also impoverished. His ability to recall information immediately and following delay was poor. He was unable to recall any of the information following a delay. Recognition memory was also poor.
In summary, Mr Gattellari's verbal memory was impoverished and characteristic of the rapid forgetting exhibited in early stages of Alzheimer's type dementia syndrome."
In expressing her clinical opinion, Dr Pulman stated (at p 7):
"Although he was co-operative during assessment his capacity to participate in a comprehensive neuropsychological assessment was limited. Assessment of his memory indicates extremely poor recall of information. He displayed rapid forgetting typical of the early stages or preclinical presentation of Alzheimer's dementia. His history of professional boxing is a known risk factor. In addition, he has a family history of Alzheimer's disease and cardiovascular risk factors.
Mr Gattellari will require further assessment and follow up within the next six to 12 months. A referral to a geriatrician together with neuroimaging is recommended to provide a more definitive diagnosis.
Based on current assessment, Mr Gattellari is unfit to give evidence as a witness in court proceedings. His condition will not improve in the future."
In her oral evidence, Dr Pulman was asked by the Crown (commencing at T2538.24 to 2539.10):
"Q. In terms of Mr Rocky Gattellari's capacity to recall past events, what was your opinion following your assessment of him?
A. His capacity to recall past events is variable when we were discussing his employment, vocational history: He gave different dates, different periods of time that he was in particular professions. He left out great sections of his life in terms of what he'd done. It was difficult to get a chronological history from him without asking questions of the family and his daughter to fill in some of the gaps. He didn't appear to recognise that he'd forgotten elements of his life until it was pointed out to him and it was clear that it was going to be difficult for me to rely on information that he gave me himself without being able to verify that from another party or, say, a member of his family. When I tested him he demonstrated what we often call ‑ in neuropsychology and in forensic psychiatrists, we say the "rapid forgetting". He will forget information that you've told him and you ask him about it 10, 15, 20 minutes later and he won't be able to recall in certain elements all of what the conversation was about. He just demonstrated gaps in his memory and a total lack of reliability in what we'd just discussed earlier in the morning.
Q. When you refer to gaps in his memory, is it memory that's disintegrated to the point that he would no longer have access to those memories?
A. When we are talking about events that had happened prior to when I assessed him, so periods of his life earlier, what happens in Alzheimer's or in this disease is conversations that you might have had two, three, four years ago, conversations, events that happened 10 years ago, can disappear from your memory record within your brain because what's happening is that that component of your brain is, for want of a better description, starting to disintegrate because there are getting tangles within that part of the brain that makes those connections. So elements of your life, periods of your life, conversations, events can disappear completely or they can be described to a third person in a way that doesn't necessarily reflect what happened unless somebody says, "Well, no, that's not what happened. That's not the case. Remember two years ago we did this?" He may say, "No, that was 10 years ago." So it's very, very difficult to place reliability on his answers about his history."
She was then asked (commencing at T2540.10):
"Q. With somebody of that level of memory impairment, are they likely to give different answers to the same question if asked?
A. Absolutely.
Q. Did Mr Rocky Gattellari do that during the course of your assessment?
A. He wasn't able to answer a number of the questions while I was assessing him. He was ‑ when I asked him about the period of time that he'd been boxing he would say one minute, "It was, like, 10 years," he had been boxing and then he would say it was 62 to 67, so it was five years. And he didn't even identify that he'd just told me it was 10 years and then he's told me it's five years. He didn't even realise that five minutes ago you told me this, now you're telling me it's five years. He didn't recognise that it was contradictory to what he said before."
She was then asked (commencing at T2540.41)
"Q. Dr Pulman, you were directed by the Crown to the Evidence Act and in particular section 13 and its definition of competency of a witness?
A. Yes.
Q. You were asked whether in relation to Rocky Gattellari he had a capacity to understand a question about a fact?
A. Yes.
Q. I think you said that he did have that capacity?
A. Yes, he does.
Q. In relation to whether or not he had the capacity to give an answer that can be understood to a question about the fact, I think you said that because of his inherent unreliability, his capacity is affected to give an answer that can be understood to a question about a fact?
A. Yes.
HIS HONOUR: Is this in the report or is this further oral evidence?
CROWN PROSECUTOR HARRIS: No, this is further oral evidence.
HIS HONOUR: So when you say that Dr Pulman said this was the case, it is not said in the report?
CROWN PROSECUTOR HARRIS: No, it is not, your Honour.
Q. Was that something that was raised with you yesterday afternoon?
A. Yes, it was.
Q. This morning?
A. Yes, it was. And the answer I provided was that when you ask him a question he can follow that question, he understands what it is that you're asking him. The concern that I have is that the answer that he provides, when you're asking a question about a fact, his answer, based upon the evidence of the assessment, indicates that his answer may be unreliable in the sense that his answer, in his mind, may ‑ in his mind he thinks, "Well, yes, that happened," or, "That happened at this particular period," or "No, I wasn't there." We don't know whether that is correct but in his mind, because of the condition that he has, he may believe he's giving you the correct answer but it may not be the case. For example, to put that into a specific example like I just mentioned about boxing, "How many years were you boxing?" The first time he says to me 10 years, then ‑ so he understood the question. He gave an accurate answer on that occasion. When we asked him again 10, 15 minutes later, he says, "62 to 67, I boxed for five years". So he gave me two different answers to the same question. So in that sense, how that fits into that section of the Evidence Act, it indicates to me that his answers can be unreliable, yet he believes he's giving you the correct answer. :
She was then asked (commencing at T2543.1):
"Q. Doctor, you were taken to a conversation that Mr Rocky Gattellari had had with Detective Howe in relation to his ownership of a property on the Central Coast?
A. Yes.
Q. You were taken to portions of that conversation where Mr Rocky Gattellari was corrected by his daughter in relation to answers he had given?
A. Yes.
Q. Was that consistent with what would occur during your assessment of Rocky Gattellari when his daughter was present?
A. Yes. She often corrected him.
Q. When he would be corrected, did he indicate that he recalled the events to which he was being corrected?
A. Often he didn't recall them at all."
She was then asked (commencing at T2543.1):
"Q. Doctor, you were taken to a conversation that Mr Rocky Gattellari had had with Detective Howe in relation to his ownership of a property on the Central Coast?
A. Yes.
Q. You were taken to portions of that conversation where Mr Rocky Gattellari was corrected by his daughter in relation to answers he had given?
A. Yes.
Q. Was that consistent with what would occur during your assessment of Rocky Gattellari when his daughter was present?
A. Yes. She often corrected him.
Q. When he would be corrected, did he indicate that he recalled the events to which he was being corrected?
A. Often he didn't recall them at all."
She was then asked (commencing at T2544.30):
"Q. He indicated to you that he was still driving a motor vehicle?
A. Yes, he did. I asked that because given his appearance, I was starting to become a little worried about that, so we did discuss his driving and I do know from working with medical practitioners that in the early stages they do let them continue to drive in their local suburb, but not any further. So that's why I asked some further questions about how far he drives. Whether that's the case or not, I can't say.
Q. To your knowledge, he doesn't have any restrictions on his licence, at least to your knowledge?
A. Not as far as I'm aware, yes."
Finally she was asked (commencing at T2544.42):
"Q. Was there any information that you gleaned from him or through his daughter that he is unable to dress himself, for instance?
A. Oh, as far as I'm aware, he doesn't have any difficulties in that regard. With the presentation of, say, Alzheimer's, one of the first things you see is that rapid forgetting, but they're still quite capable, their language is still intact, their daily activities in the sense of dressing themselves are still ‑ they can dress themselves, feed themselves. Those sorts of skills are towards the later end of the condition."
In answer to a question from me (at T2545.19) Dr Pulman confirmed that her opinions had concentrated upon Rocky's memory, because that was what she had been asked to do. She also confirmed (at T2546.4 to 2546.22) that Rocky would have no difficulty reading a document, and would have no difficulty understanding what he had read. The only qualification which she placed on his capacities in those respects was the possibility that a difficulty might arise in the case of a "long document", in the sense that he may have difficulty remembering the contents of (for example) the first page of such a document by the time that he had reached the end of it. What Dr Pulman meant by the term "long document" was not explored.
In circumstances where there is a possibility that if called, Rocky will wish to avail himself of the provisions of s 128 of the Act, I outlined to Dr Pulman what he would be told by me in the event that such circumstances arose (commencing at T2549.47). Dr Pulman expressed the general view that Rocky may have the capacity to understand those matters, but that she could not be certain that he would. However, she did agree that if the various propositions were broken down, there was a greater chance of Rocky being able to understand them.
At this point it is convenient to set out two provisions of the Act which bear upon the current determination. Firstly, s 12 is in the following terms:
Competence and compellability
Except as otherwise provided by this Act:
(a) every person is competent to give evidence, and
(b) a person who is competent to give evidence about a fact is compellable to give that evidence.
Secondly, s 13 is in the following terms.
Competence: lack of capacity
(1) A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability):
(a) the person does not have the capacity to understand a question about the fact, or
(b) the person does not have the capacity to give an answer that can be understood to a question about the fact,
and that incapacity cannot be overcome.
Note : See sections 30 and 31 for examples of assistance that may be provided to enable witnesses to overcome disabilities.
(2) A person who, because of subsection (1), is not competent to give evidence about a fact may be competent to give evidence about other facts.
(3) A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence.
(4) A person who is not competent to give sworn evidence about a fact may, subject to subsection (5), be competent to give unsworn evidence about the fact.
(5) A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person:
(a) that it is important to tell the truth, and
(b) that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs, and
(c) that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue.
(6) It is presumed, unless the contrary is proved, that a person is not incompetent because of this section.
(7) Evidence that has been given by a witness does not become inadmissible merely because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence.
(8) For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge based on the person's training, study or experience.
For present purposes, the Crown relied on the provisions of s 13(1)(b) and submitted that the evidence supported a conclusion that Rocky did not have the capacity to give an answer which could be understood to any question that he was asked. In support of that proposition, the Crown relied primarily on the opinions of Dr Pulman, although the Crown also submitted that the observations of Det Sgt Howe were also of significance. In my view, and once again without intending any disrespect whatsoever to Det Sgt Howe, those observations are of limited weight in all of the circumstances.
Senior counsel for the accused initially submitted that in circumstances where the Crown had raised the issue of competence, the onus was on the Crown to establish that Rocky was not competent. It was submitted that on the entirety of the evidence, bearing in mind the Crown's reliance on s 13(1)(b), there was no suggestion that Rocky could not give answers which were capable of being understood. It was submitted that the mere fact that Dr Pulman had formed a view that some of his answers might be unreliable did not lead to a conclusion that s 13(1)(b) was engaged, or that Rocky was not competent to give evidence as the consequence of the operation of the that section.
There is no reason not to accept the opinion of Dr Pulman that Rocky presented to her with symptoms which were typical of, and consistent with, a pre-clinical presentation of Alzheimer's dementia. Dr Pulman is eminently qualified to express that opinion, and there is no opinion to the contrary.
However, that does not determine the issue. I am unable to accept Dr Pulman's opinion that Rocky is "unfit to give evidence as a witness in court proceedings". That is an opinion expressed in terms which are inapposite to the issue I am asked to determine. In making that observation I intend no criticism whatsoever of Dr Pulman. The fact is that she expressed her opinion in those terms as a result of being given instructions which did not properly address the issue. Dr Pulman should have been asked whether, in her opinion, Rocky is competent to give evidence, having regard to the provisions of s 13.
Contrary to what was initially put on behalf of the accused, neither party bears an onus to establish that Rocky is or is not competent. The issue is one for determination by the court, on the balance of probabilities. In RA v R [2007] NSWCCA 251; (2007) 175 A Crim R 221 Harrison J (with whom McClellan CJ at CL and Howie J agreed) said (at [11]):
"The meaning of these subsections is plain. A person is presumed to be competent unless the contrary is proved. Any question of competence may be raised by the defence and the inquiry contemplated by subs 7 may be undertaken. Neither the defence nor the prosecution carries an onus. It is for the court to determine whether it is satisfied that there is proof that a person is incompetent. That question must be determined on the balance of probabilities s 142(1). Although reference was made to reports of the Australian Law Reform Commission and the common law (R v Yacoob (1981) 92 Cr App R 313 and R v T (1998) 102 A Crim R 222) the issue must be determined having regard to the relevant provisions of the Evidence Act: see R v Ellis (2003) 58 NSWLR 700."
I interpolate that at the time of his Honour's judgment, s 13 was expressed in different terms than is presently the case. The inquiry which was then contemplated by subs (7) is now contemplated by subs (8). However his Honour's observations as to the onus of proof remain applicable.
I am unable to accept the Crown's submission that the opinions of Dr Pulman support a conclusion that Rocky does not have the capacity to give an answer that can be understood to a question about a fact. Dr Pulman's report is silent as to that issue, and her oral evidence (particularly that set out at [20] above) tends to the contrary. It is evident that Dr Pulman's report focused upon the reliability of answers which Rocky might give, rather than his capacity to understand, and appropriately respond to, questions he might be asked. It is the latter issue to which s 13 is directed. Those passages of Dr Pulman's evidence set out above tend, in my view, to confuse a person's capacity to understand a question on the one hand, with the reliability of any answer which might be given to any such question on the other. If a witness is found to be competent, whether the evidence is or is not reliable remains a question for the jury, not an expert witness. That does not change in the present context: R v Sed (2005) Cr App R 4; [2004] EWCA Crim 1294 at [16].
The importance of distinguishing these concepts was emphasised in DPP v R [2007] EWHC 1842 (Admin) where a not dissimilar issue arose in the context of evidence given by a young girl. Hughes LJ made the following observations which, in my view, are of particular significance to the present case (at [21]-[22]):
"[21] This was not a case, on the Justices' findings, of incompetence. The girl may have had her learning difficulties. Her evidence may have needed treating with some care in consequence, but the problem at trial was not capacity to understand or to give intelligible answers, it was loss of memory. Recollection is quite different from competence. Of course, absence of recollection may, in some cases, co-exist with absence of competence, but they do not necessarily run together. Persons who have no recollection for an event may be perfectly competent. A simple example is the witness who is knocked out in the course of whatever happened which founds the charges, and has absolutely no recollection of what occurred, but is otherwise fully functioning.
[22] This girl was not like the child in R v Powell. She could understand the questions and she could give intelligible answers. The problem was that her perfectly intelligible answer was, "I cannot remember". She was not incompetent. It may be that she could not, for lack of memory, give useful evidence by the time of trial, but that is a different question. The ruling that she was incompetent was erroneous."
The case of R v Powell [2006] EWCA Crim 3 to which his Lordship referred involved a child of only three years of age who participated in an interview with police which was admitted into evidence. Once cross-examined, it became apparent that the child was not able to give answers that could be understood. This situation is quite different from the present case.
For these reasons I am satisfied that Rocky is competent to give evidence before the jury in the accused's trial.
[2]
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Decision last updated: 26 April 2018