R v Steurer [2008] ACTSC 141

3. On 17 July 2007 Reinhold Steurer was committed for trial in the Supreme Court, and a forensic mental health assessment was ordered. The assessment was to address the criteria for fitness to plead under s 311 of the Crimes Act 1900 (ACT) (the Crimes Act) and the criteria for criminal responsibility under s 28 of the Criminal Code 2002 (ACT).

4. An application for a determination of Mr Steurer's fitness to plead under s 311 of the Crimes Act came before me on 10 June 2008. Several assessments of Mr Steurer's mental health were tendered to me, and counsel invited me to consider those in depth and then indicate whether further assessments, or oral evidence, would be needed before the determination could be made.

5. On 15 April 2008 Mr Steurer made an election under s 68B of the Supreme Court Act 1933 (ACT) to be tried by a judge alone. In anticipation of a finding that Mr Steurer was not fit to plead, his legal representatives were considering seeking the appointment of a guardian who could if appropriate make such an election. It was agreed that this process could continue in parallel with my consideration of Mr Steurer's fitness to plead.

(a) Dr Daniel Bonner, Staff Specialist Psychiatrist, Forensic Services, Mental Health ACT, dated 6 June 2007.

(b) Dr R K Gupta, Senior Specialist in Psychiatry, Phillip Health Centre, ACT Health, dated 16 July 2007 (in the committal hearing the learned Magistrate identifies a report from Dr Gupta dated 17 July 2007 as Exhibit P7; I assume the report I have is the same document despite the different date).

(c) Dr G J George, Consultant Psychiatrist, Forensic Services, Mental Health ACT, dated 31 July 2007.

(d) Dr William E Lucas, Consultant Forensic Psychiatrist, dated 29 October 2007.

(e) Dr Stephen H Allnutt, Senior Consultant Forensic Psychiatrist, dated 30 March 2008.

7. Dr Gupta also gave evidence in the committal hearing on 17 July 2007.

8. Even the most recent report was nearly 3 months old when it came before me, and the other reports were all between 7 and 11 months old by then. All of those reports are even older now. However, as will become apparent, I consider that they are sufficient for me to make an initial decision, with the qualification that if significant changes in any of the relevant aspects of Mr Steurer's condition become apparent as this matter moves into its next stages, then Mr Steurer's fitness to plead may need to be re-assessed.

9. Of the five reports I was given, two require little further consideration at this stage (they may be important at a later stage of proceedings).

10. Dr Bonner has seen Mr Steurer in the Remand Centre as his treating doctor and specifies that he has not made any formal assessment of Mr Steurer's fitness to plead. Dr Bonner mentions the delusions and hallucinations also referred to in the other reports, but does not comment on their impact on Mr Steurer's capacities at all. There is nothing in Dr Bonner's report that can be used in assessing whether Mr Steurer satisfies the statutory criteria for fitness to plead.

11. Dr Gupta's written report also does not address the fitness to plead criteria, but makes some useful general comments about Mr Steurer's condition, which I will mention in conjunction with my comments on Dr Gupta's oral evidence at the committal hearing.

12. Section 311 of the Crimes Act sets out the criteria for determining whether a person is fit to plead, and s 312 of that Act sets out the nature of the inquiry and determination. Both these sections are set out in the Appendix to this judgment. In summary:

• The presumption is rebutted if it is established that the person is unfit to plead.

• A person is unfit to plead if his or her mental processes are disordered or impaired such that the person cannot understand, or participate properly in, various specified elements of the normal criminal processes.

• The question of fitness to plead is a question of fact to be decided on the balance of probabilities, with no party bearing a burden of proof.

13. I note that the real question for decision under s 312 is whether a person is unfit to plead, because in the absence of such a finding the presumption of fitness would operate. The statement that fitness to plead is to be decided on the balance of probabilities is therefore unhelpful and may in some cases be difficult to apply.

14. The reports from Drs George, Lucas and Allnutt, and Dr Gupta's evidence at the committal hearing, all address the subs 311(1) criteria specifically, and I summarise their findings below. There is no question of memory loss in this case, so subs 311(2) is not relevant.

15. It is important in this inquiry to keep in mind the distinction between Mr Steurer's fitness to plead to the charges laid against him in respect of the killing of his father, and Mr Steurer's criminal responsibility for that killing.

16. The current inquiry relates only to his fitness to plead, and has no direct implications for the outcome of any subsequent trial or hearing. In particular, a finding that Mr Steurer is fit to plead does not rule out a subsequent finding that he is not guilty of murder by reason of mental impairment (see Crimes Act s 321). To the extent that these two issues may have been conflated in some of the material available to me, I have tried to separate them and rely only on the aspects relevant to the current inquiry.

17. In his report, Dr Gupta did not specifically address Mr Steurer's fitness to plead, but he did comment that while Mr Steurer suffered chronic schizophrenia, he displayed no senility, no intellectual disability, and no brain damage.

18. Dr Gupta has been Mr Steurer's treating psychiatrist since February 1987 (that is, for more than 20 years by the time Dr Gupta gave evidence at the committal hearing). It is clear that Dr Gupta believes that Mr Steurer should not be held criminally responsible for his father's killing, and he appears to have responded to all legal inquiries from this perspective rather than considering different aspects of the legal inquiry according to their terms.

19. In relation to the s 311 criteria, Dr Gupta gave evidence to the following effect at the committal hearing:

• Mr Steurer understands the charge in a very concrete way, but isn't able to explain or defend himself. He shows a very narrow cognitive understanding, not a broader understanding of the moral, social or emotional wrong he has done.

• Mr Steurer "would perhaps" understand that the proceeding is an inquiry into whether he committed the offence.

• Mr Steurer can't enter a plea or exercise the right to challenge jurors or the jury.

• Mr Steurer would not be able to follow the course of proceedings in the trial.

• Mr Steurer would not be able to understand the substantial effect of evidence given in support of the prosecution.

• Mr Steurer would not be able to instruct his lawyers.

20. Dr Gupta's evidence is that Mr Steurer is not fit to plead by reference to most of the criteria set out in s 311. While Dr Gupta's views must be accorded considerable respect given how long he has been treating Mr Steurer, he provides no grounds for his assessment in relation to any of the criteria that he asserts Mr Steurer does not satisfy. His evidence in examination-in-chief by Mr Steurer's counsel was as follows:

Now, he's been charged, as you know, with murdering his father?---(No audible response)

In your opinion, is he able to understand the nature of the charge of murder?---He - yes, okay. Let's say that - if the understanding the charge means his ability to defend himself or his ability to explain himself, then the answer is no.

HIS HONOUR: I think the question, though, is just the bare concept of understanding he's been charged with murder, is the unlawful killing - - -?---Your Honour, one of the issue is that his understanding is very, very concrete. I have, in fact, in my - that when I saw him at remand centre his understanding was that, "I have murdered my father and now I should be hanged. If not hanged, I'll have to kill myself." So it's a very concrete understanding. He is not understanding anything more than that and I, having stated this direct sort of logic that he has, it may be up to your Honour to interpret whether he does or does not understand. In my view, I don't think he understands it properly.

MR PURNELL: Now, in the record of interview at 206 this issue was addressed. Could you just turn up this question and answer? He's asked, "Why is that?" and he gives this answer:

"Why should I? It's a murder. It's a pure and simple murder. There's no excuse. I've had enough of Father. That was the end of it. I wasn't going to tolerate him for as long as I could."

Now, in the context of that answer, does he understand the nature of the charge of murder?---I have some difficulty in saying yes unless - I answer this question no. I do not believe that at a broader, larger level - - -

Sorry, at the - - - ?---At a larger, broader level, in broad concept of - he understands what it's all about.

When you watch the record of interview on the tape, you see somebody that is asked a question and gives a response. You see on occasions what might be an inadequate response, on other occasions an inappropriate response by laughing in referring to killing his father. But there seems to be, to the unobserved or impartial observer, if I put it that way, an understanding of what's being asked of him - - -?---Okay, let's try to answer it.

- - - in relation to the responses that he gives?---He has a very narrow, very narrow cognitive understanding, very narrow. Not a broader understanding.

All right. Can I ask you some more questions which relate to this question of whether he's unfit to plead by reference to the tests in the Act? Whether he cannot enter a plea to the charge and exercise the right to challenge jurors or the jury, would he be able - - -?---No.

Would he understand that the proceeding is an inquiry about whether he committed the offence?---He would perhaps understand that.

Would he be able to follow the course of the proceeding, that is, follow the trial?---No.

Would he understand the substantial effect of any evidence that may be given in support of the prosecution?---No.

Would he understand what you're talking about?---No.

Would he be able to give instructions to me?---No.

Or any other lawyer, perhaps, to make it a bit wider?---No.

21. Furthermore, when counsel for the DPP sought to cross-examine Dr Gupta about the nature of Mr Steurer's understanding of what he had been charged with, Dr Gupta responded by attempting to interrogate counsel about what Mr Steurer really knew or understood. This turned out to be not a useful way of providing relevant information to the court.

22. In contrast, the other doctors provide more or less detailed explanations for, or reports of specific discussions with Mr Steurer to support, their findings that Mr Steurer does or does not satisfy one or more of the criteria.

23. The only aspect of Mr Steurer's condition that Dr Gupta considers in any depth (apart from what he sees as the overarching question of criminal responsibility) is the nature and effect of his delusions. In relation to the delusions, Dr Gupta explains that the delusions are "not compelling" but are encapsulated, and therefore do not interfere with Mr Steurer's daily life. Dr Gupta does not mention auditory hallucinations as possibly affecting Mr Steurer's attention and concentration during a trial and therefore his capacity to follow the course of proceedings.

24. When Dr George spoke to Mr Steurer, he found him to be oriented as to time, place and person and to understand the implications of the assessment Dr George was conducting. He appeared to concentrate reasonably during the interview, to be in a reasonable mood-state and to have a sense of self-preservation. Mr Steurer admitted to frequent auditory hallucinations, being voices that provided prompts but not commands, and was to some extent affected by delusional beliefs.

25. Dr George reports that Mr Steurer remembered his father's killing and his own anger at the time, and admitted to knowing what he was doing at the time, without being able to prevent himself acting. Mr Steurer was aware that he had suffered mental illness for 20 years or so. Mr Steurer demonstrated no depression. He was taking anti-psychotic medication.

26. Against all but one of the s 311 criteria, Dr George found Mr Steurer fit to plead. He reported as follows:

• Mr Steurer understood that the current charge related to his murder of his father, and how he had killed his father.

• Mr Steurer could cope with challenging the jury; he understood scenarios that might require this, and that if he thought someone should not be on his jury he should talk to his lawyers about it.

• He understood the concept of pleading; he proposed to plead guilty, but understood that a plea of not guilty was also available to him.

• He understood the nature of the court proceedings, and had relevantly been able to describe what had happened in the Magistrates Court.

• He understood the significance of the evidence that would be given and the purpose of that evidence.

• Mr Steurer believed that he could instruct and, indeed, that he had already instructed, his legal representatives.

27. However, Dr George was concerned about the effect of Mr Steurer's auditory hallucinations on his attention and concentration, specifically in relation to his ability to follow the course of proceedings in the court. He found that Mr Steurer was unfit to plead because of the auditory hallucinations.

28. He then considered whether Mr Steurer was likely to become fit to plead within 12 months, and suggested that this might happen if he were treated, in a "rehabilitation environment", with Clozapine, which is often used for resistant psychosis. By implication, Dr George considered that Mr Steurer's current anti-psychotic medication, Zyprexa, would not provide the necessary improvement, so without Clozapine he was not likely to become fit to plead within that period.

29. Dr Lucas said that Mr Steurer showed no indication of any cognitive impairment or of any personality disorder. Dr Lucas also noted Mr Steurer's delusional beliefs, but said they were "encapsulated" and doubted that they "in any way influence his behaviour". He also noted the auditory hallucinations.

30. As to the criteria for fitness to plead, Dr Lucas noted as follows:

• Mr Steurer understood the court processes; in particular Mr Steurer was aware that the purpose of the proceeding was to reach a conclusion about whether he would be convicted or released.

• Mr Steurer understands the pleas available, and that the court is concerned with his guilt or innocence, and understands about challenges to the jury.

• Mr Steurer had been able to follow proceedings as they "pertain to [him]".

• Mr Steurer understands about witnesses and the kinds of evidence that different witnesses might give.

• Mr Steurer believed he had instructed his lawyers, and Dr Lucas believed that Mr Steurer would be able to understand any required explanations from lawyers.

31. Dr Lucas noted that Dr George had considered Mr Steurer unfit to plead but said "I am certain that is no longer the case".

32. Dr Allnutt first describes his report as a review on the papers, but then indicates that he has had discussions with Mr Steurer. At my request, counsel for the DPP obtained an e-mail from Dr Allnutt confirming that he had seen Mr Steurer twice. I note also that the headings in Dr Allnutt's report, and indeed his introduction, refer to Michael Steurer, the victim, but it is apparent that Dr Allnutt's assessment is in fact of Reinhold Steurer, the accused.

33. Dr Allnutt noted that Mr Steurer experienced occasional auditory hallucinations, which were generally minor but sometimes mildly distracting when he watched television. However he said that Mr Steurer was sometimes capable of ignoring the voices, and never lost track of the TV program he was watching. Dr Allnutt found that the voices didn't distract Mr Steurer from reading, and that they did not operate as "prompts" influencing Mr Steurer's decisions.

34. Mr Steurer said that he had not concentrated during parts of the committal hearing, but he had explained that this was because he was bored by hearing his own confession replayed in the Magistrates Court.

35. Dr Allnutt considered the fitness to plead criteria and addressed them as follows:

• Mr Steurer has the capacity to understand the nature of the charge.

• Mr Steurer's delusional beliefs might affect his ability to challenge members of a jury on rational grounds.

• Mr Steurer has the capacity to understand the court proceedings, and described the trial as "where questions get asked by the prosecution and the defence and a determination is made".

• Mr Steurer has the capacity to follow proceedings, and the voices ("auditory phenomena") have reduced, occur rarely, and do not distract him. He is therefore likely to be able to focus on trial processes. Dr Allnutt noted that Mr Steurer is vulnerable to incorporating the court in his delusional beliefs.

• Mr Steurer was able to give examples of what evidence might be given and its significance, and Dr Allnutt considered that he has the capacity to understand the substantial effect of the evidence given.

• Mr Steurer has the capacity to decide on his defence, although he will need advice from his lawyers; when Dr Allnutt saw him he was ambivalent about his plea, but Dr Allnutt was not sure whether this related to Mr Steurer's need for legal advice or to his schizophrenia. Mr Steurer's delusional beliefs may also cause problems for his lawyers.

36. Dr Allnutt concluded that Mr Steurer is "fit to stand trial", but notes that it may be necessary to re-visit the matter if difficulties emerge during trial. He recommends a further assessment close to any trial, and a further review by Dr George with a view to obtaining an assessment of any changes in Mr Steurer's mental state since 2007.

37. All the doctors involved seem to agree that Mr Steurer is a person of above-average intelligence, with no cognitive deficiency or impairment, no intellectual disability, no brain damage and no personality disorder. There is no suggestion that his auditory hallucinations influence his decisions or (except from Dr George) that they distract him to any significant degree. There is some concern (from Dr Allnutt) that Mr Steurer's delusional beliefs might affect his functioning in the course of criminal proceedings, but no suggestion on the basis of his current condition that they would do so.

38. As well, there is general agreement that Mr Steurer suffers from chronic schizophrenia, and (although this is not immediately relevant) was not, meaningfully, in control of his actions when he killed his father.

39. I now turn to the statutory criteria, and assess each one by reference to the material already set out.

Ability to understand the nature of the charge (par 311(1)(a))

40. All the doctors agree that Mr Steurer can understand the nature of the charge against him, although Dr Gupta comments that this understanding is only "in a very concrete way". I find that Mr Steurer understands the nature of the charge against him.

Ability to enter a plea to the charge and exercise the right to challenge jurors or the jury (par 311(1)(b))

41. Drs George and Lucas consider that Mr Steurer has the capacities required by this criterion. Dr Gupta says that he does not, but provides no explanation for this view. Dr Allnutt believes that Mr Steurer generally satisfies the criterion, except that his delusional beliefs might affect his ability to make a rational assessment of potential jurors. However, none of the other doctors, including Dr Gupta, are concerned about Mr Steurer's delusional beliefs in this context, because the beliefs are "encapsulated" (Dr Gupta), don't influence Mr Steurer's behaviour (Dr Lucas), or do not affect his functioning in this context (Dr George). I note also that the process of challenging jurors without cause is not necessarily a rational process for any accused person, and will often be influenced by beliefs that, while not delusional, are not particularly well-founded.

42. I find that it has not been established on the balance of probabilities that Mr Steurer is incapable of entering a plea on the charge, or of exercising the right to challenge jurors or the jury.

Ability to understand that the proceeding is an inquiry about whether the person committed the offence (par 311(1)(c))

43. Drs George, Lucas and Allnutt believe that Mr Steurer understands the nature of the court proceedings, while Dr Gupta says that he would perhaps understand this, but does not provide any basis for qualifying his opinion with "perhaps". I find that it has not been established on the balance of probabilities that Mr Steurer would not understand that the proceeding is an inquiry about whether he committed the offence with which he has been charged.

Ability to follow the course of the proceeding (par 311(1)(d))

44. Dr Gupta considered that Mr Steurer could not follow the course of the proceeding, but gave no reason for his view. Dr George considered that Mr Steurer's auditory hallucinations would prevent him following the course of the proceeding. However, Drs Lucas and Allnutt also discuss the impact of these hallucinations, and conclude that they would not distract Mr Steurer significantly; in the case of Dr Allnutt, this conclusion is based on a discussion with Mr Steurer to the effect that Mr Steurer didn't bother concentrating at the committal proceedings because he was bored by hearing his own confession re-played. I find that Mr Steurer is not materially more likely to be distracted from following the course of proceedings than any other accused person, and that it has not been established on the balance of probabilities that he would not be able to follow the course of the proceedings.

Ability to understand the substantial effect of any evidence that may be given in support of the prosecution (par 311(1)(e))

45. Drs George and Allnutt specifically found that Mr Steurer would understand the significance of evidence. Dr Lucas reported a conversation with Mr Steurer about the role of witnesses and the kind of evidence they can give. It is implicit in his finding that Mr Steurer is fit to plead that Dr Lucas considered Mr Steurer could understand the significance of evidence that might be given. Dr Gupta stated that Mr Steurer would not understand the substantial effect of any evidence given in support of the prosecution, but gave no reason for his view. I find it has not been established on the balance of probabilities that Mr Steurer would be unable to understand the substantial effect of any evidence that might be given in support of the prosecution.

Ability to give instructions to the person's lawyer (par 311(1)(f))

46. Drs George and Lucas believe that Mr Steurer is able to give instructions to his lawyers, and accept Mr Steurer's advice that he has already done so. Dr Allnutt found that Mr Steurer could instruct his lawyers, although he left open the possibility that Mr Steurer's current ambivalence about his plea might turn out to be a symptom of his schizophrenia rather than simply a reflection of his need for more legal advice. Mr Steurer's lawyers have not challenged the comments from the doctors that Mr Steurer has given them instructions, nor indicated that there has been any difficulty in getting instructions.

47. I find that at this stage there is no basis for concluding that Mr Steurer is unable to give instructions to his lawyers.

48. A finding that Mr Steurer is not unfit to plead under s 311 might be thought to imply that, if he then pleads guilty to his father's murder, that plea must be accepted by the court at his trial.

49. The law on when a judge may or must refuse to accept a plea of guilty is not the subject of much authority, but in the matter of Director of Public Prosecutions (NSW) v Yeo [2008] NSWSC 953 (17 September 2008), Johnson J quoted from Maxwell v The Queen [1995-1996] 184 CLR 501 (Maxwell), in which Dawson and McHugh JJ said (at 511):

The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial judge, for whatever reason, the plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct the plea of not guilty be entered. But otherwise an accused may insist upon pleading guilty.

50. In Maxwell, their Honours then (at 511) quoted from R v Martin (1904) 21 WN (NSW) 233 at 235, as follows:

It has been said that a plea of not guilty should have been entered, but it appears to me that where a man who evidently knows what he is about insists upon recording a plea of guilty, the Judge cannot interfere. If there is any doubt as to the nature of the plea, or any reason to suppose that the accused is not thoroughly aware of what he is doing, a plea of not guilty should be entered; but I can see no reason why the Chief Justice should have taken that course in this instance.

51. These authorities suggest that even an accused with no hint of mental impairment may in some circumstances make a plea of guilty that a trial judge should not accept. A finding that a person whose mental state at the time of the relevant incident is in question is, at a later time, fit to plead according to the statutory criteria could not exclude the kind of inquiry that might be available to other accused persons about whether a plea of guilty should be accepted.

52. The conversations recorded by several doctors, in particular by Dr Allnutt, suggest that Mr Steurer has a fairly good appreciation of both the conceptual significance, and the practical outcomes in his case, of pleas of guilty or not guilty. However, this is not the same as understanding the subtleties of the legal position, in particular the significance of a plea of not guilty by reason of mental impairment.

53. If, at his trial, Mr Steurer carries out the intention he has expressed to some of the doctors of pleading guilty, it seems to me that the trial judge would still be entitled to consider, having regard among other things to the evidence that has been put before me about Mr Steurer's state of mind when his father was killed, whether that plea of guilty should be accepted.

54. I have examined each of the criteria set out in subs 311(1) by reference to the views of each of Drs Gupta, George, Lucas and Allnutt, and concluded for each of the criteria that Mr Steurer's ability to understand and participate in the legal processes is not, or has not been established to be, currently compromised by any disorder or impairment of his mental processes. I find that the inquiry under s 311 of the Crimes Act has not established that Mr Steurer is unfit to plead and therefore that the presumption in s 312 of fitness to plead applies.

55. I therefore find that Mr Steurer is currently fit to plead. However, having regard to Dr Allnutt's concerns, I order that Mr Steurer be assessed again within the period of two months before the date fixed for his trial, with specific reference to the concerns expressed by Drs George and Allnutt relating to Mr Steurer's auditory hallucinations and his delusional beliefs respectively.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Solicitor for the Crown: ACT Director of Public Prosecutions

Crimes Act 1900 (ACT)

(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.

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.