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.