R v Tuigamala

COUNSEL : K. McKay (Crown) M. Ierace SC (Accused)

SOLICITORS : Office of the Director of Public Prosecutions (Crown) Legal Aid Commission (Accused)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

JUDGMENT (Re: fitness to plead) 1 HIS HONOUR: The issue has arisen as to whether or not David Tuigamala is fit to be tried for the offence of murder, an offence charged on an indictment presented in this Court. The question of the accused's unfitness to be tried is to be determined on the balance of probabilities: Mental Health (Criminal Procedure) Act 1990, s 6. 2 Proceedings in relation to the offence charged were commenced before 1 January 2006 and there was an earlier trial before Wood CJ at CL and jury that commenced on 1 December 2004, and the accused gave evidence. Following that trial the jury found the accused guilty of murder and the former Chief Judge sentenced the accused to a non parole period of twenty years with a total term of imprisonment of twenty-six years. 3 There was an appeal to the Court of Criminal Appeal, the sole ground of appeal being expressed as follows: "The trial miscarried as a consequence of the Court's unawareness that the appellant had a significant intellectual disability, which impacted on: (i) the admissibility of certain evidence, (ii) the manner in which his sworn evidence was taken and the inferences which could reasonably be drawn from it, and (iii) the availability of certain defences." 4 The appeal was successful, the conviction was quashed and a new trial was ordered. 5 Having reviewed evidence of psychologists and psychiatrists then available, McClellan CJ at CL, in expressing the reasons for the decision of the Court of Criminal Appeal, said: "32 In those circumstances, in my opinion, this Court must conclude that there is a real difference of opinion between the experts to which I have referred leading to the conclusion that there is a possibility that the appellant's trial miscarried by reason of his unfitness. 33 In those circumstances this Court has no alternative but to uphold the appeal, quash the conviction and order a new trial. At that trial the question of his fitness to be tried will be investigated and the appropriate course taken should the conclusion be reached that he is not fit. 34 If he is found fit to be tried but on condition that his intellectual impairment is recognised during the course of the trial, it would be a matter for the trial judge to protect the process at any retrial to ensure that it is fair. Those are matters which it would not be appropriate for this Court to enter upon at this stage of the proceedings. This Court's task is to identify whether a possible miscarriage has occurred. As I have indicated the evidence before us, in my opinion, leaves no alternative but to conclude that there is such a possibility. 35 In those circumstances, the appeal should be upheld, the conviction quashed and a new trial ordered." 6 Because the proceedings were commenced before 1 January 2006, this present fitness inquiry should have been held with a jury unless the accused made a judge alone election: ss 11 and 11A of the Act as it previously provided. However, the accused has elected to have the question of his unfitness to be tried determined by a judge sitting alone, and the Director of Public Prosecutions has consented to that election. Hence the proceedings before me. 7 The offence charged was allegedly committed by the accused at the Club Hotel in Campbelltown at 5.00 am on 6 September 2003. The accused had been drinking at the hotel with companions and it is alleged that he struck the deceased with a blow to the face, causing the deceased to fall to the floor. It is further alleged that the accused then kicked the head of the deceased, and the prosecution case is that the kick caused the death of the deceased. 8 On the evidence before me, it would not seem that the accused denies having punched and kicked the deceased. At the earlier trial, there was an issue of provocation, and there was also an issue as to whether or not the necessary intent for the crime of murder had been established. Those same issues are likely to arise if I find the accused is now fit to stand trial. 9 The accused was interviewed by police at the Campbelltown Police Station on 7 September 2003 and there was, indeed, a lengthy electronically recorded record of interview: Exhibit H. I have seen and listened to the interview as recorded. Part of it was recorded only on audio tape: Exhibit G. 10 On 8 September 2003 the accused attended the Club Hotel with police officers on a walkthrough and I have seen and heard the recording of that walkthrough. 11 The Crown also tendered the video and transcript in relation to a police interview with the accused on 31 March 2000 when the accused was interviewed concerning an unrelated matter involving the assault of a police officer: Exhibits K and L. 12 The accused's evidence at his earlier trial was tendered: Exhibit J. The other evidence presented at this trial has been evidence from expert witnesses. Two psychiatrists were called, Dr Wong and Dr Westmore. In addition, Dr Pulman and Associate Professor Hayes have given evidence following their psychological assessments of the accused. 13 I shall refer to their evidence presently, but I remind myself as to the issues to be addressed in order to determine whether the accused is fit to stand trial. These issues are well settled following the much cited decision of Smith J in R v Presser (1958) VR 45 at 48. Smith J there identified the minimum standards that an accused person must measure up to before a trial can be held. The requirements are these:

(i) the accused must be able to understand the nature of the charge;

(ii) the accused must be able to plead to the charge and to exercise the right of challenge;

(iii) the accused must be able to understand generally the nature of the proceedings;

(iv) the accused needs to be able to follow the course of the proceedings;

(v) the accused needs to be able to understand the substantial effect of evidence given against him;

(vi) the accused needs to be able to make his defence. This involves the ability to instruct counsel and inform counsel of the accused's version of the facts. It also involves giving that version of the facts to the court. The accused "must have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and his counsel if any": see Presser at 48. 14 It is with these requirements in mind that I consider the evidence introduced at this hearing.

The evidence reviewed 15 Dr Wong examined the accused on 21 March 2006 and on 7 May 2007. Dr Wong furnished reports following those examinations and his reports are dated 20 April 2006 and 8 May 2007. Dr Wong assessed the accused as suffering from mental retardation, "probably of the mild category". Dr Wong addressed the Presser requirements and reported on 20 April 2006: "Considering the answers he gave to my question[s] in their totality, I am of the opinion that the appellant's understanding of the workings of the criminal justice system, though rudimentary, is probably adequate for him to stand trial. He is broadly aware of the role of the various parties in a court of law and of the adversarial nature of the proceedings. I assess his ability to give his version of the events in question, both to counsel and as a witness. At his trial, the examination in chief was very brief, taking up only four pages of the transcript. Even though the questions and answers pertaining to the crucial events took up just over two pages, there were in his answers gross inconsistencies (T 175.43, 175.54) and missed what was asked of him (T 175.50). In the versions he gave me, there were blatant inconsistencies which he was unable to reconcile. Admittedly, in the course of the brief examination-in-chief, counsel succeeded in eliciting from him a sketchy though somewhat contradictory account of the events in question, and bringing out the element of self-defence and/or provocation, albeit rather circuitously. However, it would appear from the answers he gave elsewhere in his evidence and when interviewed by me that if counsel were to explore these issues further, it would be very difficult to obtain from him any coherent, consistent or meaningful response. Indeed, counsel alluded to as much when he told the court, in relation to the relatively straightforward issue of discharging a juror, that he did 'have some difficulty discussing matters with (the) accused and his ability to understand' (T 75.40). I am therefore most reluctant to conclude that he has the capacity to instruct counsel. Based on his performance in the witness stand and during my interview, I also have my doubts that during his trial, he would be able to grasp, if only in essence, the evidence given by witnesses or follow the proceedings in a meaningful manner. The difficulties he manifested might have been due to his limited command of English or to his Mental Retardation and it is difficult to apportion their respective contributions through reading the transcripts and viewing the videotape of the ERISP. In my interview, I had considerably more difficulty communicating with him without an interpreter. However, he had difficulty comprehending even relatively simple questions put to him through an interpreter. As well, he encountered learning difficulties in schools in Samoa where he was taught presumably in his native tongue. His difficulty is described, for example, in para 5 of the report by Emma Collins, psychologist. Even more significantly, his Matrices score, which is language- and culture-free, puts him in the category of mild intellectual disability. I am thus of the view that his Mental Retardation has played a very significant and possibly a major role in contributing to his difficulties at interview and trial situations. It follows therefore that the difficulties he encountered in interview situations and in the witness stand are unlikely to be remedied by the provision of an interpreter and/or the interrogator and tribunal being appropriately informed of his disability, as suggested by A/Prof Hayes. To cite an example, when asked by me through the interpreter whether anything happened between him throwing the punch and being escorted out the club by the security guard, he could not grasp the question. The police appeared to have similar difficulty with him at the ERISP (Q/A 871-7). Issues such as this obviously have to be put to him both in conferences and at his trial and it is hard to see how the questions can be simplified further for his benefit. His basic difficulty is in grasping the concept, regardless of how it was put to him. Incidentally, A/Prof Hayes also observed that the concept of 'time in between' might be beyond him (p 5.7 of report of 2.11.05). In the light of these considerations, I am of the opinion that the appellant is not competent to be a witness and not fit to be tried , principally because he lacks the capacity to give an account of the events in question, to instruct his legal representatives, to understand the evidence given and to follow the court proceedings generally. His disability, namely, Mental Retardation, has been present since at least an early age and is unlikely to have fluctuated significantly in severity. My conclusion therefore applies to the time of his trial in 2004 and to the present day." 16 Dr Wong considered the accused's presentation to be essentially unchanged in May 2007 and his opinion was that the accused was still unfit to be tried. Dr Wong wrote: "He is not capable of giving a consistent account of the events surrounding the alleged offence and for that reason, not capable of instructing his legal representatives. As a result of his inability to grasp questions or statements that are at all involved or novel, he would have significant difficulty and thereby compromised when cross-examined. For the same reason, he would have difficulty following, if only in essence, the evidence given by witnesses and the proceedings of his trial." 17 Dr Westmore examined the accused on 16 June 2006 and again on 27 April 2007. Dr Westmore furnished reports dated 19 June 2006, 23 June 2006, and 30 April 2007. Dr Westmore opined in his earliest report that the accused was intellectually disabled in the "mild to moderate range". On 23 June 2006 he wrote: "1. At the time I examined him I thought Mr Tuigalama was fit to be tried. He could give an account of what occurred leading up to the charges and he has an adequate understanding of the Presser issues. Although intellectually disabled he would be able to follow evidence given in court, however I concur with the opinions expressed by Associate Professor Susan Hayes when she discusses in some detail his intellectual problems and how they could potentially impact on his fitness and what might need to be done during a trial to overcome those difficulties. 2. There is nothing in his history to indicate he would have a mental illness defence to the matter now before the court. On the balance of probability his self induced intoxication along with the 'provocation' played an immediate and direct role in the offending behaviour. He would not have available to him the defence of substantial impairment. 3. If his mental state at the time the last trial proceeded was similar to his current mental state, then again with qualifications it would be my view that he would have been fit to be tried at that time. Once more I note the observations, comments and recommendations of Associate Professor Hayes. If the original trial proceeded in the 'usual fashion' without there being regular checks to ensure that Mr Tuigalama understood what was occurring, then that would have disadvantaged him. If allowances were not made for his intellectual disability, language issues and cultural and social issues, then that also would have disadvantaged him." 18 Having examined the accused for the purposes of his most recent report, Dr Westmore remained of the opinion earlier expressed by him. Dr Westmore concluded his report of 30 April 2007: "Based on his clinical presentation I am of the view that Mr Tuigalama remains fit to be tried. He has a basic but adequate understanding of the Presser issues. He would in my view be able to provide his legal representatives with instructions and he would be able to follow the legal proceedings although I do note that he will require assistance due to his intellectual disability and because of language and perhaps cultural issues." 19 Dr Pulman made her psychological appraisal of the accused on 2 May 2006 and her report of 24 May 2006 followed. Dr Pulman conducted various tests before concluding that the accused fell into the category of having "a mild intellectual disability". Dr Pulman addressed the Presser considerations and concluded: "Based on the current assessment and review of the documentation and material supplied to me, I do not believe that Mr Tuigamala has sufficient ability to consult with his legal counsel with a reasonable degree of understanding of proceedings against him. While he may be able to repeat or paraphrase simple information containing only one concept and have some ability to apply the information and respond to simple questions, I do not believe he has the ability to bring to bear reasonable judgment or comprehension regarding proceedings or be able to weigh to some degree the risks and benefits of various potential options before him. The reasons for this conclusion are based on his intellectual disability and language difficulties most likely from birth. Even with the benefit of an interpreter Mr Tuigamala continued to have considerable difficulty comprehending even simple questions put to him. I am not of the opinion that these difficulties can be overcome by the provision of an interpreter and simplifying the questions directed at Mr Tuigamala or informing the Court of his intellectual disability. His intellectual and language difficulties which were apparent from childhood prevent him from comprehending even simple concepts. His thought processes are concrete and he has an extremely limited ability to think in abstract terms. There will be no improvement in his condition. In conclusion, it is my opinion, that on the balance of probabilities, Mr Tuigamala is unfit to be tried. In accordance with R v Presser [1958] VR 45, Mr Tuigamala does not have the ability to generally understand the nature of the proceedings, to follow the course of the proceedings or to instruct counsel." 20 Associate Professor Hayes saw the accused on 16 August 2005. Having considered various psychological tests, Associate Professor Hayes concluded that the accused was "mildly-moderately intellectually disabled". Associate Professor Hayes, in a report of 23 November 2005, opined that in the situation of the first trial the accused had not been competent to give evidence but that there were safeguards which could have been put in place to compensate for his intellectual disability: "In my opinion, if the situation had been different, and the Court had been aware of the implications of Mr Tuigamala's deficits in language and intelligence, and if the questioning process had taken these deficits into account, Mr Tuigamala would be competent to give evidence. The questions put to Mr Tuigamala would need to be brief, he would need time to formulate a response, and the questions should not contain more than one concept at a time." 21 Associate Professor Hayes went on to state: "I did not conduct a detailed assessment of Mr Tuigamala's fitness to be tried when I assessed him. Nevertheless, he seemed to understand the charges against him, his plea, and the appeal process. I consider that he could give his version of events and would be competent to give evidence if he were questioned appropriately, taking into account his intellectual disability and communication/language deficits." 22 Associate Professor Hayes saw the accused again on 30 April 2007 and provided a report on 1 May 2007. I record the opinion expressed in that report: "The results of psychometric assessment indicate that Mr Tuigamala has a diagnosis of intellectual disability, his verbal and communication skills being poorer than his non-verbal reasoning skills and adaptive behaviour. His English has improved slightly since being in a primarily English-speaking environment in prison. It should be noted, however, that his difficulty in communication is not solely related to the fact that English is a second language, but also is part of his intellectual disability. I am of the opinion that Mr Tuigamala is fit to be tried, for the reasons explained above. However, owing to his intellectual disability, Mr Tuigamala will need special consideration during the trial. He will need a Samoan interpreter for the duration of the trial . Even with an interpreter, however, he finds it difficult to understand what people say and to comprehend abstract concepts. He will need frequent explanations from his legal counsel as to what is happening in court. When Mr Tuigamala is being questioned in court, the questions put to him should be brief and clear. Double-barrelled questions (i.e. asking about two issues in one question) should be avoided as he cannot recall a lengthy or complex question and respond to all the issues in a long question. As far as is feasible, he should be allowed to narrate his version of events with little interruption, because interruptions affect his concentration and he finds it difficult to get back on track. Mr Tuigamala is sometimes slow to respond to a question because he requires time to process a question and formulate a response. It is important that the questioner wait for the answer, and not interpolate a second question as this will confuse Mr Tuigamala and cause him to lose concentration; furthermore, it will be unclear as to whether the response is to the first or second question. Mr Tuigamala can be easily led in his responses, and this should be borne in mind. In addition, he is reluctant to admit when he cannot understand a question; therefore, an ambiguous or non-responsive answer should be clarified by the questioner to ensure that Mr Tuigamala is responding to the question as asked, and has not mis-interpreted the question. His language is sometimes difficult to understand, and he says that 'the words get tangled up', consistent with the deficits he has in expressive language." 23 Associate Professor Hayes saw the accused again on 9 May 2007 during the course of this hearing, and having done so altered her opinion. This most recent interview conducted by Associate Professor Hayes followed immediately upon the adjournment of the Court. Just prior to the adjournment the lengthy ERISP referred to earlier was being shown. Associate Professor Hayes brought up some of the issues in that interview with the accused and was influenced by his responses. I will not record in its entirety the content of the most recent report of 9 May 2007 but Associate Professor Hayes wrote: "I asked the client if he would be able to tell his story in court, with all the details, and he replied that he could not remember accurately because it was 'too far back'. I said that during the ERISP it is suggested that he left one hotel about 12 midnight and arrived at another hotel at about 12 midnight, and then asked how this could be the case because he was driven in a car from one hotel to another and therefore some time must have gone by. He then stated that he thinks he arrived at the second hotel between 12 and 3 am. He then added that perhaps it was between 3 am and 4 am. This series of responses indicates that the accused is suggestible and changes his story if he thinks that he might be saying something inaccurate, but that he does not have the capacity to recall the details accurately. He did not say to me that he could not recall when he arrived at the second hotel, but rather tried to alter the story because it seemed to him that perhaps the facts were not correct. This indicates to me that he lacks the assertiveness to state when he cannot recall a fact accurately. I asked Mr Tuigamala whether he could remember the details of that night. He started to tell me a version of events. Without canvassing the entire story that he narrated, there were significant differences between his narration and the version which emerged from the ERISP only a few minutes previously. Mr Tuigamala appeared to be unaware of the inconsistencies which is in accord with Dr Wong's statement on page 5 of his report dated 8 May 2007. The accused also embellished his narration with 'facts' which had not previously been mentioned, and again he did not appear to realise that what he was saying was very different from what he had said on the ERISP which he had watched only a short time before. As a result of this interview, I am now of the opinion that Mr Tuigamala is unfit to be tried because his evidence is unreliable and inconsistent. In my opinion he is not altering his story in order to paint himself in a better light. I consider that he cannot recall the actual events of that night with accuracy, and furthermore, he cannot recall the facts as revealed in the ERISP. In other words, he cannot recall what happened and in addition he cannot recall what he told police. He tends to add in random new pieces of information, rather than state that he cannot remember or he does not know a piece of information. He is suggestible and if he thinks that his answers are being questioned, he tries to 'fit' the story to the version he thinks that his questioner wants to hear. I consider that he does this because of his suggestibility, which is in turn related to the diagnosis of intellectual disability. His memory is so poor that he was unable to recall what had been presented in the police ERISP only a short time before I interviewed him." 24 It is to be observed that of the experts called, Dr Wong, Dr Pulman and Associate Professor Hayes concluded that the accused is not fit to stand his trial. Dr Westmore considered that he is fit. 25 Each of the expert witnesses gave oral evidence at length, and I propose to refer to some parts of this evidence. However, before doing so I refer to one point of agreement between all the experts and that is that each considers that the accused has a mild intellectual disability. Precisely what this means was addressed by Associate Professor Hayes in her report of 16 August 2005: "An individual with a mild intellectual disability has relatively low support needs, compared with those who are moderately, severely or profoundly impaired. The person with mild intellectual disability may live in their own accommodation, although they will require support from a carer (either family or service provider) in learning and performing the tasks of daily living. He or she probably can catch a bus or train, once they have been travelled-trained. Some people may even be able to obtain a driving licence, after many attempts. The individual will probably be able to read and write to a limited extent, and to fill out bank forms or use an ATM. These types of skills are typically taught in special classes at school and TAFE. The person might have a job in open employment. This group of people can be employed in a number of areas including in a plant nursery, in a mailroom, as a kitchen-hand, clearing tables in a restaurant, cleaning, or office work such as simple photocopying. Many will be able to learn to use a computer, either for simple writing tasks or for searching the internet for topics that interest them. Again, this skill is encouraged at school and TAFE; TAFE colleges have special courses for people with ID. They will have to be taught skills that non-disabled people can pick up by themselves, and usually it takes about five times longer to learn a skill. In the workplace, they may have a job support worker, who visits the workplace to ensure that the person with ID can do the job consistently, to teach them new skills, and to negotiate with the employer about rates of pay and job duties. There is a special agreement under which a person with a disability can receive a proportion of the award wage, assessed on their performance at the job in comparison with a non-disabled worker. Complex decisions about budgeting, changing employment, moving house or health/dental care are areas in which they will need assistance. People in this range are not capable of complex problem solving, especially using abstract concepts; they tend to be concrete in their thinking and reasoning, and take longer to solve simple problems and to learn new tasks. They will have some memory difficulties and deficits in communication skills. They tend to be suggestible and easily led by their peer group. It is difficult for them to foresee the long-term consequences of their actions." 26 Higher up the scale of intellectual disabilities are those categorised as "moderate", and still higher are those categorised as "severe and profound intellectual disability". 27 The accused is a Samoan by birth. He was brought up in a small village in Western Samoa and came to Australia in 1992, then aged fifteen years. His schooling ended at year nine, after which he obtained employment in a variety of non-skilled positions, which included labouring, working as an offsider to a truck driver, working for a painter and working "with furniture". He was in a de facto relationship as at 6 September 2003 and he had a son born shortly before the date of the arrest of the accused. 28 The Crown submitted that the accused is fit to be tried, whilst Mr Ierace of Senior Counsel, for the accused, submitted to the contrary. This brings me to a further review of the expert evidence and features of it referred to in submissions. 29 The Crown submitted, in my view correctly, that all the experts agree that the accused understands the nature of the charge and is able to plead to it. Further, there is agreement that he is able to exercise the right to challenge potential jurors and that he understands the nature of the proceedings in the sense that he understands that the proceedings relate to an alleged crime of murder. It is the remaining Presser issues about which the experts disagree. 30 In concluding that the accused was fit to be tried subject to the implementation of the safeguards proposed by Associate Professor Hayes, Dr Westmore opined that whilst the accused suffers from a degree of mental retardation, he has the capacity to understand the charge and to give an account as to what occurred and why "from his perspective" (T 32). He considers that the accused has the intellectual capacity to follow the proceedings and to provide ongoing instructions as the proceedings progress. Dr Westmore considers that the accused can give an account of what occurred and an account of how he felt at the time it was occurring (T 34). In Dr Westmore's opinion the accused has the capacity to give reliable evidence (T 52). 31 When cross examined about the accused's ability to give an account of how he was feeling at the time of the incident, Dr Westmore said (T 54): "His lack of ability to - if there is such a thing in him to give an account of how he was feeling at the time of the incident is unlikely, in my view, to be occurring because of his intellectual disability. If you told him - gave him some bad news or if you told him he'd won Lotto he could tell you, despite his disability, how he felt about that. If he has a problem with his memory about how he felt at the time it's not due to his intellectual disability. That man is not so impaired that he can't give you or describe his emotional responses to things. If he has memory problems in relation to the incident it's to do with, on the balance of probabilities, those other things I talked about which affect all human beings regardless of their intellectual capacity, intoxication, high arousal, passage of time." 32 Turning to the evidence of Dr Wong, the Crown noted that he agreed in the walkthrough that the accused was able to describe the physical acts relevant to the offence (T 15). I observe that there was general agreement, according with my own impression of the video and what was said at the walkthrough, that the accused was able on that occasion to identify in their setting the physical acts leading to what had occurred at the time the deceased was killed. Dr Wong acknowledged that the accused would be able to voice "superficially" emotions such as "I was angry" and "I was provoked", but Dr Wong expressed concern that because of his inability to give a consistent account of what happened, the accused would not be able to provide any more in-depth instruction to his legal representatives. 33 Dr Wong, to the same effect, gave evidence (T 19) that the accused would be capable of asserting the absence of intent in striking the deceased but he voiced concern as to the accused's ability to give further meaningful instruction. At T 19: "Q. Well, if he could express that why would he have difficulty expressing that 'I had no specific intent to cause grievous bodily harm or to kill him at the time I kicked him'? A. I think to say that requires more intelligence that just saying 'I didn't do it'. I'm not suggesting that he is not capable of putting forward not only the defence as to deny the whole thing happened, he was, in fact, capable of saying like what he told me yesterday, that 'I was angry. It wasn't planned it just happened'. He was capable of doing that.

And, in fact, that was the position I maintain all along, that I'm not disputing his inability to do that. What I am concerned about is that if defence counsel would like to take this up with him further and explore the issue further that he would not be able to give any meaningful instruction." 34 The Crown acknowledged Dr Pulman's expressed concerns as to the capacity of the accused to provide a version of events, and the circumstance that he was easily confused. The Crown properly drew attention to evidence that Dr Pulman gave (T 68) to the effect that she did not believe the accused could adequately follow the evidence given by others in court, although Dr Pulman did consider (T 69) that the accused was able to instruct counsel in relation to the physical acts he had performed. As to evidence given by others, the Crown referred to Dr Pulman's opinion as to how the accused could cope with this (at T 69): "Q. So do you see that he could have a difficulty following evidence from witnesses, lay witnesses, who are just called who were present at the time giving an account of what they saw and heard? A. It is my opinion that he will still continue to have difficulty with questions that are asked of the witnesses and listening and comprehending all of those questions to the level that he should be able to in a trial process and when he is - if in the course of him being cross-examined he would have difficulty answering the questions and having certainty that he did comprehend that question adequately to provide a response that you can depend upon.

Q. But do you see him having any difficulty following someone who may simply be saying 'I then saw him kick the person on the ground'? A. He would be able to comprehend that.

Q. Or if a witness said, 'After he punched him and before he kicked him I heard him say some words to the person on the ground'? A. He would be able to comprehend that.

Q. Do you see he would have any difficulty in being able to give instructions to his counsel about those matters? The physical acts of kicking? A. The physical act he would be able to provide advice to counsel.

Q. Or about whether he said any particular words? A. He would be able to provide advice on that matter." 35 In her evidence, Associate Professor Hayes altered her opinion. The Crown drew attention to the opinion expressed that the accused was "unfit to be tried because his evidence is unreliable and inconsistent" (T 101). I referred earlier (at [23]) to the reasons which the witness expressed in her most recent report for having arrived at that conclusion. The witness gave evidence that whilst the accused was able to say that he did not intend to hurt his victim: "I don't think he can say it beyond that… He can say 'I am angry. I was angry.' But he can't say what he was angry about or if there was some specific concept or whether there was another emotion apart from anger" (T 103). 36 To the same effect, the witness said that the accused's intellectual disability prevented the accused from saying whether there was anything apart from anger that motivated his behaviour (T 104). 37 The witness gave evidence as to her experience with people with intellectual disabilities, and, relating to that experience, said as to the accused (T 112): "It is not that he is not remembering the events, but remembering bits and pieces of a story which are being put together and he is also remembering suggestions, not deliberate suggestions, but questions that they have quite legitimately asked him and he thinks to himself: perhaps that is what happened." 38 The witness concluded (at T 112): "That is why I think he cannot accurately, (a), remember the events, (b), recount the events, (c) recall what he said, or did, during the interview and, therefore, it makes it almost impossible for him to consider the evidence that other people are giving and to put his viewpoint to his legal representatives." 39 As to her change of opinion, the witness explained (at T 112) that until the occasion she last interviewed the accused she had not canvassed with him what he was going to tell his legal representatives. It was attention to this issue that prompted her to change her mind, having regard to inconsistencies that emerged. 40 Finally, the Crown drew attention to the evidence of Associate Professor Hayes (at T 130) that the accused lacked the capacity "to describe the inner workings of his mind". 41 Associate Professor Hayes referred to the accused's intellectual disability as impacting upon the accused's memory (T 118). Dr Wong did not consider that there was any evidence that there was any significant impact on the accused's memory as such (T 26), and Dr Westmore did not consider any memory loss was necessarily referable to his intellectual impairment (T 52). After conducting her tests, Dr Pulman did not consider that the accused's memory was significantly impaired. Of course, it may be, as Dr Westmore opined, that if the accused had problems with his memory in relation to the incident, it may have been due to factors such as intoxication or high arousal or passage of time (T 54) and I accept the following expression of opinion from Dr Westmore (at T 54) to which I made reference earlier (at [31]): "If [the accused] has memory problems in relation to the incident it is to do with, on the balance of probabilities, those other things I talked about which affect all human beings regardless of their intellectual capacity, intoxication, high arousal, passage of time." 42 In R v Drummond (unreported, NSWCCA, 27 May 1994) it was determined that the fact that an accused person could not for one reason or another recollect the events leading to an alleged crime did not mean that the accused was incapable of letting his counsel know what his version of the facts was for the purpose of meeting the Presser requirements. Gleeson CJ observed in Drummond: "The accused person who says to his counsel 'I can't remember what happened on that day' is not thereby unfit to plead." 43 Mr Ierace does not here rely upon any memory problem to support the contention that the accused is unfit to plead. However, Mr Ierace submits there is a fundamental problem here that impacts upon the accused's ability to instruct his counsel and upon the accused's ability to give evidence, and this is the confusion in the accused's account between what he remembers and the effects of contamination. The difficulty is to be found in the accused's capacity to determine the extent of his memory and to communicate that, separating it from factors of contamination. 44 Mr Ierace drew attention to features in the history taken by Dr Westmore in his report of 19 June 2006:

(i) the accused told him that he had a son, and when asked how old the son was responded that "the mother was in the hospital having a baby", when in fact the son had been born some little time earlier;

(ii) the accused referred to the deceased "getting on top of the tables", an assertion not previously the subject of any account;

(iii) the accused told Dr Westmore that he had broken his arm whilst at home some time after the incident, whereas he was not at home after he was charged;

(iv) in 2006 the accused had told Dr Westmore he could read and write but only in Samoan. When interviewed in 2007 he told Dr Westmore he had read the prosecution brief, although he did not understand big words in it. 45 Mr Ierace submitted that Dr Westmore conceded there was a need to double-check what the accused had to say and that this was a fundamental problem if the accused was required to stand trial, particularly because of the importance of considering the state of mind of the accused over a critical short period. 46 Turning to the evidence of Dr Pulman, Mr Ierace placed particular emphasis on her evidence as to the accused's capacity to express himself in a reliable fashion. At T 78-79, Dr Pulman said: "…it's his capacity to articulate his emotion and what he was going through and why he did what he did other than a reaction. It's - that expressing what he is thinking and experiencing that in comparison to an individual of average intellect there would be a difference between the way in which he would be able to describe that experience to you. So he could - he could, as I said before, be led to fabricate because he gets confused and overwhelmed and may go along with a particular version of events at that point of time." 47 And then (at T 80), the following passage appears: "Q. When you were answering questions asked by my learned friend your attention was drawn to the fact that during the ERISP occasionally the accused would disagree with police and it was suggested to you that that was some indication that at least in relation to those questions he not only understood what they meant but he was capable of putting an alternate point of view during questions and your answers to that effect? A. Yes. He - I'm not saying that he would agree with all questions, and that he would tend to agree to questions throughout the whole interview. I'm not saying that at all. He would certainly have some capacity to say, well, this is what happened, to give a different version or to respond appropriately to that question. My concern still remains that there could - because of the likelihood that he is going to agree with certain statements without fully comprehending the nature and the complexity of that question means that he will give a response that he didn't intend to give.

Q. And isn't this the underlying problem: That where there is no disagreement, where there is no means of checking, one simply can't be confident that, firstly, he's understood the question, secondly, he has appropriately expressed his response, and, thirdly, he has not overly reacted to the stressful situation that he's in? A. Yes.

Q. In a way that delivers unreliable evidence, unintentional? A. Yes, I recall when I was going through the transcripts and he would give a response to a question, it was in the back of my mind repeatedly throughout that interview does he really mean yes to this or not, does he really mean no or not? I'm not convinced he really understands the question, even when it was put to him in a number of different ways. I still had that concern that this response may not be reliable and I continue to have that concern." 48 Questioned as to the evidence which the accused gave at his trial on 6 December 2004, Dr Pulman referred to the contradictory evidence at T 185-186 as illustrative of her concern as to the ability of the accused to give evidence. In this regard, I refer to the evidence of Dr Pulman, incorporating the evidence of the accused at his trial, in the passage at T 88-90: "Q. And you were taken discretely to a question and answer commencing at line 21 where when one has regard just to that question and answer it seems that the accused said quite clearly that he didn't say anything contradicting the proposition being put to him, is that right? A. That's correct.

Q. Would you, please, go back a page where this issue first came up, page 185, where at line 40: Q. Did you say were you just yelling out he deserved it, I told him to fuck off, isn't that what you were yelling out? A. No.

Q. Could you have yelled that out? Could you have yelled that out? A. Yep.

Q. Do you remember? A. Yes, I remember. Yeah, I remember'. In other words, at that point it seems if one has regard just to the answers just a few questions before the passage you were taken to that the accused was saying that he could have yelled out words to the victim? A. That's correct.

Q. Reading on: Q. 'You remember what you yelled out? He deserved it. What? He deserved being punched, is what you said or what you meant that he deserved being punched?

HIS HONOUR: Q. Do you remember saying that he deserved to be punched? You ask the question please.

CROWN PROSECUTOR: Q. Did you say 'he deserved it, I told him to fuck off' or something like that? A. Either him or me'. So at that point he's taken an each-way bet; either he said it or the victim said it? A. Mmm mmm.

Q. Correct? A. That's correct. Q. 'Q. What do you mean? What? Barry said he deserved it, is that what you were saying? A. Yep'. So now he's adopted the proposition that the victim said it, correct? A. That's correct.

Q. Please accept from me that his Honour the following day made it clear that where there are unanswered questions that's because in the transcript the accused sat silently saying nothing? A. That's correct, mmm mmm. Q. 'What did you say? You tell this Court what you said? A. I just punched him, that's it.

Q. You just punched him? A. Yes'. And then we come to the question that was put to you: 'Q. So if I suggest to you that you were heard to say he deserved it, I told him to fuck off, that's wrong, is it, is that wrong, did you say it? A. I didn't say anything'. And so within that passage we've seen him adopt three different positions, haven't we? A. That's correct.

Q. And does that illustrate the concern that you have? A. Absolutely." 49 Mr Ierace submitted that that concern which Dr Pulman had about the inability of the accused to genuinely communicate his recollection was shared by Associate Professor Hayes when the latter witness changed her mind about the fitness of the accused to stand trial. I have referred already (at [23]) to what Associate Professor Hayes wrote in her report of 9 May 2007. Mr Ierace submitted this report was of particular significance in evidencing problems for the accused in giving uncontaminated evidence, a problem which the witness considered to be due to the accused's intellectual disability. Mr Ierace referred also to the evidence of Dr Wong and to the inconsistencies Dr Wong remarked upon emerging from the accused's answers at his trial. (I shall refer to these later.) Dr Wong also referred to inconsistencies in what the accused told Dr Wong. For instance, in the report Dr Wong wrote of 8 May 2007 the doctor recorded inconsistent responses which the accused gave as to the time lapse between when the accused punched the deceased and when he kicked him. At one stage the accused said it was two to three seconds that went past. Fifteen minutes later, he said it was thirty minutes or thirty seconds. Later, he explained that the estimate of thirty minutes was given because, according to the accused, he was not very good with time. There were also inconsistent accounts given by the accused to Dr Wong about what he did when he left the club after the events giving rise to the charge. There were inconsistencies in his account as to where he entered a taxi. Dr Wong, having recorded these various inconsistencies in his report of 8 May 2007, wrote (at p 5 of his report): "Mr Tuigamala gave a reasonable account of the events which culminated in his arrest. However, when this was explored further, his account became quite grossly inconsistent. When asked to reconcile his inconsistent accounts, he appeared to be at a loss and gave answers which were often irrelevant or not readily comprehensible. I am not suggesting that a person is not fit to be tried unless he demonstrates an ability to reconcile inconsistencies in his evidence. However, at least some of Mr Tuigamala's difficulty appears to stem from his inability to perceive the presence in his statements of even quite gross inconsistencies and to grasp questions that were at all involved or novel. It is difficult to be sure whether he gave grossly different answers because he was stressed or flippant, because he was trying to give what he considered to be acceptable answers or because of some unidentified motive. When his attention was drawn to his confused answers relating to the 30 minutes/30 seconds gap, he did not seem to be able to fully appreciate their absurdity." 50 I do not propose to refer further to the detail of the evidence of the various expert witnesses. None of the witnesses was shaken in relation to his or her opinion during the course of cross examination. I was informed that Dr Westmore and Dr Pulman were provided with details of the evidence which Associate Professor Hayes had given having altered her opinion. Neither Dr Westmore nor Dr Pulman was recalled, and I was asked by counsel to proceed upon the basis that in the case of Dr Westmore he did not change his opinion having considered what Associate Professor Hayes had said and in the case of Dr Pulman I was asked to proceed upon the basis that she considered Associate Professor Hayes' opinion reinforced her own opinion as expressed in this Court. 51 There does not seem to be any issue as to whether or not the accused punched and kicked the deceased. He told the police that he did in his ERISP, Exhibits G and H, and in his evidence at trial the accused said that he punched and kicked the deceased. The issues at the earlier trial, and the issues which it is anticipated would arise at a retrial if I determine the accused is fit to be tried, are issues as to the intent with which the accused acted and also the issue of provocation. These are both issues which Mr Ierace submitted could only be properly addressed from the accused's point of view if he was capable of giving reliable evidence as to his thought processes. The Crown can, of course, invite the jury to infer the intent of the accused from a consideration of what he did. Mr Ierace submitted, however, that it was possible that the accused lacked the requisite intent for the crime of murder and, bearing in mind his intellectual disability and slowness in thinking, he may not have reached the point of contemplating the consequences of his act. By reason of his disability, Mr Ierace submitted, the accused is not equipped to express himself so as to deal with the issue of intent at his trial and similar difficulties present in relation to the issue of provocation. In addition, with the question of provocation, it is submitted that the accused's inability to deal with time concepts, as illustrated by the history which Dr Wong took, presents a further problem for the accused. 52 No evidence has been placed before me from those who represented the accused at his earlier trial addressing any problems in obtaining instructions for the accused's defence. The Crown refers to this, inviting the assumption that at the earlier trial those representing the accused were able to represent him on the basis of instructions given. I have given that submission much thought but, ultimately, I am required to determine the question of the accused's unfitness to be tried on the balance of probabilities, and having made my assessment of the evidence which has been presented on this hearing. I must carefully weigh all such evidence, and this, of course, includes not only the evidence of Dr Westmore, who considers the accused fit to be tried, but also the evidence of Dr Wong, Dr Pulman and Associate Professor Hayes who consider the accused unfit to be tried. 53 Viewed in isolation, the walkthrough would occasion no concern as to the fitness of the accused to be tried. The Crown relied also upon an electronically recorded interview conducted with the accused on 31 March 2000 when he was interviewed in relation to inquiries into an assault on a police officer. That interview took place within hours of the events about which the accused was asked questions. Broadly speaking, the accused appeared to be able to respond appropriately to the questions he was asked then, but I do not find that I am much assisted by the evidence as to that interview, having regard to its subject matter and its timing in relation to the events there in question. 54 The evidence which the accused gave at his trial is explicable by reference to the accused's mental disability. Dr Wong reported as to that evidence on 20 April 2006: "Some of the answers he gave were so contradictory that would raise concern that he did not understand the questions, had difficulty in expressing himself or merely went along with what was suggested by the questions, for example, T 181.43-52; T 185.40-50 and T 186.21-24; T 186.7-16; T 188.31 to T 189.8 when in almost successive answers, he agreed that the victim, after punched by him, 'stood up', 'seated with his bottom on the floor', 'sitting up' and 'on his knees'; T 190.53-58 and T 198.26-34. It is particularly difficult to be sure what he was trying to say when he responded by a monosyllabic 'yes' or 'no' to questions asked in the negative, for example, T 177.32; T 187.55; T 191.25-30; T 191.44; T 194.6-10 (answers apparently contradicting that given on T 193.53) and T 199.27-34. As his answers were monosyllabic, it is not possible to assess whether he in fact meant 'yes' or 'no' in the context of a more comprehensive answer. On at least two occasions, T 184.45 and T 192.53, the Crown was concerned that he was merely agreeing with her" 55 Having considered the evidence to which Dr Wong referred above, I agree with what he said about it. 56 There were also the inconsistencies at trial in the accused's evidence in chief as to the sequence of events from the time that he said he punched the deceased. He said he fell to the ground and that after that the accused kicked him. He also said that after he punched the deceased, the deceased "was still standing on feet, half way, like swinging around" (T 175). 57 Turning to a consideration of the ERISP, the accused's presentation and responses inevitably occasion concern as to the accused's fitness to be tried. Again, I agree with what Dr Wong wrote (at p 6 of his report of 20 April 2006): "In response to questions, he frequently appeared blank and puzzled and gave answers which were off the point or grossly inconsistent. He seemed unable to understand the questions, including some which were relatively simple, alternatively, he might be unable to adequately express himself. This was apparent throughout the interview but more blatant examples could be found in Q/A 56, 395, 429-30, 467-79, 486, 490, 493, 618-9, 706-7 then 732, 900, 990, 1023-29 and 1068-76. As well, he appeared unduly inclined to go along with what was suggested in the questions, for example, Q/A 548-9, 721, 738, 749 & 53 - all relating to finding a taxi; and 663-8. It is noteworthy that the interrogating police officers were concerned about his ability to comprehend and repeatedly asked him if he understood what was asked of him (Q/A 491, 901, 907, 931 and 1162)." 58 In the ERISP questions were addressed to the accused which related to the intention with which he punched and kicked the deceased and which related to his emotions at the time of the incident. The accused said he was angry when he kicked the deceased (Q/A 912). The accused did not respond when he was asked directly what his intention was when he kicked the deceased (Q 921). The accused said he was "pissed off" when the deceased swore at him (Q/A 941, 950). The questioning did not elicit any complete response from the accused as to the intent with which he acted. Likewise, at trial in the evidence in chief given by the accused, the answer to the question directed to the intent with which the accused punched the deceased was not responsive (T 176). 59 Another concern about the ERISP arises from Q/A 875-884. Here the accused was asked about the sequence of events, including the punching and the kicking, and the time that elapsed between events. The responses do not appear to have been focussed, and, of particular significance, the accused did not appear to be able to give a reliable estimate as to the time lapse between the punch and the kick. This could indeed assume relevance on the issue of provocation. 60 The Crown submitted that the accused has been consistent in saying that he became angry with the deceased because of what the deceased said and this was the reason why he punched and kicked the deceased. He did not have anything in his mind when he did this and what more could the accused say bearing upon intent and provocation? The Crown submitted that with the safeguards proposed by Associate Professor Hayes at the time she considered the accused fit for trial, safeguards which Dr Westmore considered adequate, it would be possible to conduct a fair trial complying with the minimum standards determined by Presser. Those safeguards are recorded at [22] above (the extract from Associate Professor Hayes' report dated 1 May 2007). 61 The Crown submitted that the jury could be alerted to the accused's intellectual disability, and to the need for particular consideration to be shown to the accused in the course of his evidence. It was also submitted that the jury would need to be given instruction as to how they were to go about assessing his demeanour and his evidence. 62 I have given close consideration to the Crown's submissions but, having weighed the significance of the way the accused expressed himself at his trial in 2004 and in his ERISP in September 2003, I am persuaded on the balance of probabilities by the evidence of Dr Wong, Dr Pulman and Associate Professor Hayes as reviewed above that the accused is unfit to be tried. The Presser requirements set out in [13] (iv), (v) and (vi) above are not satisfied. 63 I have reached this conclusion reluctantly. I have no doubt that the loved ones of the deceased long for finality, and there is a general public interest in having criminal proceedings completed as soon as possible. Moreover, as I pointed out to Mr Ierace at the conclusion of submissions yesterday, the accused could ultimately find himself in custody for longer than under the sentence imposed by Wood CJ at CL should a referral to the Mental Health Review Tribunal lead to

(a) a special hearing under s 19 of the Mental Health (Criminal Procedure) Act ,

(b) a finding adverse to the accused at that hearing, and

(c) the subsequent imposition of a limiting term under s 23, which term would contain no provision for parole. 64 However, my present task requires that I determine the question of the accused's unfitness to be tried, and, a trial in which the Presser requirements would not be met would not be a fair trial. Having regard to the findings I have expressed as to the accused's unfitness, I am required by s 14 of the Mental Health (Criminal Procedure) Act 1990 to refer the accused to the Mental Health Review Tribunal. What happens after that referral is, of course, to be determined by reference to the regime provided by the Mental Health (Criminal Procedure) Act.

Formal findings and orders 65 1. I find the accused unfit to be tried for the crime charged.

2. I refer the accused to the Mental Health Review Tribunal pursuant to s 14(a) of the Mental Health Criminal Procedure Act 1990.

3. Pending the determination of the Tribunal under s 16 of that Act, I adjourn the proceedings on the indictment presented before me.

4. I remand the accused in custody pending the determination of the Tribunal and subsequent order of this court. **********

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