- Notable Unreported Decision
SUPREME COURT OF QUEENSLAND
Young v Director of Public Prosecutions (Qld)  QCA 247
ANDREW ERIC YOUNG
DIRECTOR OF PUBLIC PROSECUTIONS (QLD)
Appeal No 4197 of 2019
MHC No 110 of 2018
Court of Appeal
Appeal from the Mental Health Court
Mental Health Court at Brisbane – Date of Order: 1 April 2019 (Dalton J)
12 November 2019
20 August 2019
Sofronoff P and Philippides and McMurdo JJA
CRIMINAL LAW – PROCEDURE – FITNESS TO PLEAD OR BE TRIED – OTHER MATTERS – where the appellant was charged with two counts of fraud – where the trial was listed for 16 weeks and involved voluminous documentation concerning financial transactions – where the appellant was self-represented at trial – where the appellant suffered a “transient amnesic event” four weeks into the trial – where the appellant engaged solicitors who referred his case to the Mental Health Court to determine whether the appellant was fit for trial – where three medical opinions accepted that the appellant had developed an impairment affecting his ability to learn and recall new information – where the learned primary judge found that much of the information at trial would not be “new” to the appellant – where the learned primary judge found that the appellant would be assisted by measures that could be directed at trial including the provision of daily transcripts and note taking – where the learned primary judge found the appellant fit for trial – where the appellant submits that the learned primary judge’s finding of fitness was subject to a number of changes to the way the trial would have to be run and this qualification is a de facto finding that the appellant was unfit for trial – whether the appellant’s fitness for trial was conditioned upon the trial being conducted in a particular way – whether the appellant was unfit for trial
Mental Health Act 2016 (Qld), s 118, s 549
DAR v DPP (Qld) & Anor  QCA 309, cited
Kesavarajah v The Queen  181 CLR 230;  HCA 41, cited
R v Presser  VR 45;  VicRp 9, cited
B J Power for the appellant
D Balic for the respondent
Fisher Dore Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent
SOFRONOFF P: The appellant has been charged on indictment with two counts of fraud under s 408C of the Criminal Code (Qld), offences that were allegedly committed by him in 2007 and in 2009. At the hearing of this appeal, it was common ground between the parties that a trial of these offences would take several weeks and would involve a consideration of voluminous documentation about financial transactions. The appellant was charged together with his brother, who was alleged to be a co-offender.
A trial of these charges against both men began but that trial was discontinued against the appellant for reasons that are not material to this appeal. A second trial of the charges against the appellant began. It had been set down for 16 weeks and the appellant represented himself. Some four weeks after the beginning of the trial, the appellant became unwell. He was observed to be sitting in court when everybody else had left during an adjournment. He was acting confused and disoriented. He was taken to hospital and was diagnosed as suffering from a “transient amnesic event”.
Section 110 of the Mental Health Act 2016 (Qld) provides that, if a person has been charged with a “serious offence” that person’s lawyer may refer the question of the person’s “mental state” to the Mental Health Court. Having regard to his condition, the appellant engaged solicitors who referred his case to the Mental Health Court. Pursuant to s 118(2) of the Act, in the circumstances of this case, the Mental Health Court was obliged to decide “whether the person is fit for trial”. The Act does not define that expression. Section 685 of the Act provides that no party to the proceeding bears the onus of proof of any matter and that the matter must be decided on the balance of probabilities.
After a hearing, Dalton J decided that the appellant was fit for trial and ordered that the proceedings against him continue. The appellant now appeals against that order to this court pursuant to s 549 of the Act. Such an appeal is an appeal strictu sensu.  Consequently, the appellant must demonstrate an error of fact or law. The appellant accepts that that is the position.
By his amended notice of appeal, the appellant raises a single ground as follows:
“The Mental Health Court erred in taking into account certain assumptions about the way in which the appellant’s trial would be conducted in determining that the appellant was fit for trial.”
That ground arises out of the following circumstances.
Together with his brother, Bradley Young, and a third man, the appellant was a director of a company called “Kleenmaid”. The two charges against the appellant arise from his role as a director. One charge concerns what is said to have been the appellant’s dishonesty in obtaining a loan of $13 million dollars for the company from Westpac Bank. The other charge concerns an allegedly dishonest withdrawal of $300,000 from the company’s bank account. A trial of the charges would require many documents to be tendered and evidence to be given about inter-company arrangements, transactions and decisions that were made. The issues would be complicated.
Dalton J had before her three medical opinions.
Dr Jane Lonie is a neuropsychologist. She furnished two reports after interviewing the appellant and administering certain tests to him. Dr Lonie concluded that the appellant’s intellectual functioning, as defined in particular ways for the purposes of the tests, was relatively high. So too were his “Executive Functions”, namely his ability to solve problems, to conceptualise in an abstract way and to maintain his attention and engage in abstract reasoning.
However, his “Auditory Verbal Memory falls within a borderline range for a man of his age”. Dr Lonie found that the appellant “was slow to acquire new information with repetition and rehearsal” and that he had a “severe impairment in his ability to recall or retrieve newly rehearsed verbal information following a brief (ie 20 minute) delay”. Dr Lonie concluded:
“54. Mr Young is exhibiting a focal and clinically highly significant impairment of his recent verbal memory and new learning impairment.
- His ability to learn and retain new information is assisted by the provision of structure/organisation (for example new information in the form of short stories) at the time of learning. Mr Young’s ability to learn and retain new verbal material of an unstructured nature (ie new information without apparent order/organisation such as lists of words and word pairs) is extremely poor.”
Later in her first report, Dr Lonie said:
“67. The level of verbal memory and new learning impairment Mr Young displays would make it extremely difficult for him to learn and retain, or to read and later recall, new information. Mr Young is presently performing this cognitive function at a level commensurate with the bottom first percentile of his age peers.
- Mr Young’s impaired verbal episodic memory function could be reasonably expected to impact on his ability to legally represent himself in the current proceedings in so far as it would be extremely difficult, if not impossible, for Mr Young to keep up to date with any written or spoken content, in so far as he may be required to remember evidence that has been presented, verbal information arising in proceedings, or material he that he has read. Furthermore, as a result of Mr Young’s verbal episodic memory impairment, it could not be assumed he was capable of retaining and bringing to mind all of the relevant information in processes of decision-making.
- It is my understanding, based on descriptions provided by Mr Young himself, that the proceedings involve a large volume of evidentiary matter. Mr Young does not presently retain the necessary verbal memory and new learning ability to allow him to retain, integrate and later recall such material and his attempts to represent himself at trial would, in this sense, be grossly compromised.”
In her second report Dr Lonie addressed the test for fitness that was established by R v Presser. That is a test that has been accepted in Australia. As expressed in Kesavarajah v The Queen, according to that test, fitness to stand trial requires that the accused has the ability (1) to understand the nature of the charge; (2) to plead to the charge and exercise the right of challenge; (3) to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged; (4) to follow the course of the proceedings; (5) to understand the substantial effect of any evidence that may be given in support of the prosecution; and (6) to make a defence or answer to the charge.
In R v House  Connolly J explained that:
“Capacity to instruct counsel involves understanding the evidence which is led so as to be able to inform counsel whether it is true or not and whether there are other facts which qualify or explain the evidence adduced. It does not involve understanding the law especially if, as in this case, he had the benefit of counsel.”
As Gleeson CJ observed in Eastman v The Queen  the ultimate test remains the statutory test.
In the opinion of Dr Lonie the appellant was able to understand the nature of the charges against him and was able to plead and to exercise his right of challenge. He would be able to understand the nature of the proceedings.
Dr Lonie said that the problem lay in the impairment of the appellant’s ability to “acquire and retain new information, that is his impaired recent verbal memory”. She said:
“41. With specific reference to Mr Young’s ability to follow the course of proceedings, this is likely to be adversely affected to the extent that ‘following’ or making sense of the course of the proceedings is reliant upon his ability to remember and bring to mind information he has read or heard (for example in the form of evidence, transcripts, conversations with his legal team) from the recent past. Where the recall, integration and consideration of such information is required, there is the potential for Mr Young to be disadvantaged as a result of the residual effects of his TGA on his verbal memory function.
- With respect to Mr Young’s ability to understand the substantial effect of evidence proffered against him, the cognitive findings suggest he is unlikely to experience any difficulty at the level of comprehending evidence presented in isolation. In a situation where Mr Young’s interpretation and comprehension of such evidence was reliant on his ability to consider and integrate a number of additional recently heard or discussed facts/matters (i.e. a wider context), his impaired memory function would have the potential to adversely impact upon his ability to understand the substantial effect of the evidence.
- In a similar manner, the cognitive findings suggest Mr Young was, prior to the TGA, and remains quite capable of communicating his thoughts and opinions within the context of his defence. His impaired recent memory function and resultant reduced ability to bring to mind and consider information of contextual relevance (i.e. discussions with counsel, oral testimony, and written material) has the potential to detract from the integrity of defence Mr Young is capable of putting forward.
- In a more general sense, and as noted in the original report (4 April 2018), the level of verbal memory and new learning impairment Mr Young displays would make it extremely difficult for him to learn and retain, or to read and later recall, new information of the volume described in your letter of instruction and across the expected length of the trial.
- The neuropsychological findings suggest it would be extremely difficult, if not impossible, for Mr Young to keep up to date with any written or spoken content, in so far as he may be required to remember evidence that has been presented, verbal information arising in proceedings, or material he that he has read. Furthermore, as a result of Mr Young’s verbal episodic memory impairment, it could not be assumed he was capable of retaining and bringing to mind all of the relevant information in processes of decision-making. This would need to be identified and presented in relation to each decision/instruction he provided.
- To the extent that the instructions he provided to his legal representative were reliant on his ability to acquire, remember and later recall new information, his capacity in this sense would also be expected to be adversely affected by his current memory impairment. I would be particularly concerned about the effect that Mr Young’s memory impairment had on his ability to apprise counsel of his position in relation to all of the relevant facts, particularly where these facts have arisen for the first time within the course of the proceedings (i.e. in they are recently acquired facts). Mr Young would be reliant on the members of his legal team to bring each of the relevant facts and relevant areas for his consideration, to his attention as a means of ensuring he had integrated these into his decision making and instructions arising. He would benefit from being co-located with his solicitor in this regard, particularly if he is required to provide instruction during trial proceedings.
- The cognitive findings suggest that Mr Young would not experience any difficulty observing the presentation of evidence in the course of the trial in the form of witnesses giving oral evidence and the presentation of documents. However, his capacity to comment upon this information, may be adversely impacted upon by his impaired memory for having heard or read such evidence.”
Professor Gerard Byrne, a consultant psychiatrist, also assessed the appellant and furnished a report. He concluded, and it is now common ground, that the appellant has suffered two episodes of transient global amnesia. He has made a recovery but, as happens with some patients, he suffers from persisting memory deficits.
The appellant was working as the manager of a [cucumber] farm when Professor Byrne examined him. According to instructions that the appellant gave to another psychiatrist, Dr Sharon Reutens, his job required him to supervise six managers and to be responsible for “mak[ing] sure that everything ran smoothly”. He “signed off on requests to buy items if the managers requested it”. He said that, because he signed off for goods, he was able to “keep on top of the farm”.
Professor Byrne inquired about the appellant’s understanding of the case against him and reported as follows:
“Dispute of the facts
Mr Young has an alternative view of the facts [of the case against him] and this alternative view does not appear to be due to any mental disorder.
He believes the prosecution has erred in its interpretation of the evidence. He believes that normal business practices have been misconstrued as fraud. Mr Young argues that as his brother (Bradley Wendell Young) had multiple grounds for his appeal against convictions on similar charges, he (Andrew Eric Young) should be able to succeed at trial. He understands that judgement has been reserved in his brother’s appeal case.”
Upon the basis of his own examination, as well as the test results obtained by Dr Lonie, Professor Byrne concluded:
“In my view, Mr Young has the capacity to meet all of the Presser criteria (R v Presser  VR 45), if assisted by daily transcripts and experienced legal counsel. The presence of a new learning impairment on its own should not deprive him of fitness.
I think the concerns raised by Dr Lonie in her second report can be adequately addressed through the assistance of a team of experienced legal advisors and through the provision of daily transcripts.
I would note that Mr Young has been able to work in a managerial position on a large and sophisticated hydroponic farm, which provides evidence of his functional capacity.
In addition to requiring that the Presser criteria for fitness for trial are met, the statutory definition in the MHA states, “and endure the person’s trial, with serious adverse consequences to the person’s mental condition unlikely”.
Although Mr Young experienced an episode of memory loss attributed to transient global amnesia after several weeks of conducting his own defence in 2017, it is my view that he is unlikely to suffer a serious or permanent worsening of his mental state during any future proceedings so long as he does not represent himself.”
Dr Reutens, who also assessed the appellant, was of the opinion that he did not have the capacity to “undertake the cognitive work of comprehending and retaining evidence presented over a long duration, or integrating new evidence with previous evidence and comparing it to his own defence”. She was of the view that it was “unlikely that he would be able to understand the substantial effect of the quantum of the evidence or the cumulative effect of the evidence over the course of the trial”. He would also not “be able to readily recall all of the pertinent material in order to brief his solicitors”. In addition, it was “unlikely he would be able to bring pertinent facts to mind in a timely manner if he was cross-examined or if he had to relay instructions to his lawyer”.
For those reasons Dr Reutens was of the opinion that criteria 4 to 6 of the Presser test were not satisfied in the appellant’s case. She did not believe that the provision of a trial transcript, the opportunity to make notes or the shortening of court sessions would overcome is impairment to learn new material and to recall it.
Dr Lonie was cross-examined. She was asked about the significance of the appellant’s ability to fulfil the requirements of his then current employment:
“Did you make any inquiries about what is required from him undertaking that employment day-to-day?---No. I didn’t. No.
Okay. You understand, of course, that he’s currently in a managerial position of a complex farming operation?---That’s – my understanding is that there’s a [cucumber] farm that he is involved in. Yes.
Now, does that – does his employment in that kind of position speak at all about his ability to assimilate new information, given that it is a managerial position?---Look, I know the report of Professor Byrne, and in that report, I couldn’t see any example of where his auditory/verbal memory would be tested to a sufficient level to impair his performance. I couldn’t see the examples.
All right. Notwithstanding that it’s described that there is about 100 employees and it is a managerial position, you can’t see that that would require him to assimilate new information as part of that employment?---I don’t know what the set-up is. I don’t know what the structure is around him, so I don’t know – without an understanding of his precise responsibilities and, indeed, how he is managing those, how he is managing to function, I can’t answer that question.”
A little later there was the following evidence:
“All right. If a trial is to last some months, perhaps three or more months, he is unable to recall the information that was given, the evidence that was given earlier in the trial without being taken to it directly. Is that correct?---Correct. Correct.
The same happens with documents. If it’s a document heavy trial, as we understand this is, he would be unable to recall evidence given in the earlier parts of the trial relevant to that document?---Correct.
So what would need to be done is that he would need to be taken, for example, through an individual document and then taken through all of the other evidence, completely piecemeal, to see if it has – one has any bearing on the other?---That’s absolutely correct.”
Dr Lonie agreed that the appellant would be able to make reasonably accurate notes during the trial. She also agreed that the appellant had demonstrated a capacity to retain a lot of information about his brother’s appeal even after his suffering his amnesic episode. She also agreed that there was no issue concerning the appellant’s memory of historic events to do with circumstances surrounding his alleged offending. The issue concerned his ability to recall fresh information as it emerged during the trial.
Dr Reuten acknowledged that the appellant would not have difficulties dealing with the information in the evidence against him that had been given to him before his aborted trials. She said that to the extent that he did not have to “actually learn new material … he probably would be able to then… follow the quantum of the evidence available to him”.
Dalton J found that Dr Lonie’s testing showed that the appellant had no memory loss for the period of the alleged offending nor for the period until his episode of transient amnesia. Further, despite his acknowledged disability, he was able to comprehend and retain new information concerning his brother’s case, which, of course, concerned him also. Her Honour also found that, according to Dr Lonie, the appellant would be able to make sensible and coherent notes during the trial and to review daily transcripts and make notes arising from such a review. Her Honour referred to Dr Lonie’s evidence that the appellant would have difficulty remembering new information that he received verbally but observed that Dr Lonie was unable to say whether he would have the same difficulty if he received new information in writing. The availability of daily transcripts and the appellant’s adequate capacity to use those transcripts obviously has significance in that respect.
Her Honour also observed that, notwithstanding the results of Dr Lonie’s clinical testing, she had not taken into account the significance to her opinions of the appellant’s ability to function in his managerial work. Her Honour found that, in his account of that work to Dr Reutens, the appellant acknowledged that he had a “responsible job making high-level executive functional decisions which would require him to draw a whole lot of newly acquired information together in order to decide whether or not cheques should be signed”. Her Honour remarked that Dr Lonie equated the appellant’s ability to remember lists of random words with a capacity to follow the progress of a trial and to retain new information in that setting. Her Honour found that the two situations were not equivalent. Her Honour observed, in particular, that much of the “new information” that would be presented at the trial would be information that is already well known to the appellant and with which he has had the opportunity to consider.
Dalton J observed that Professor Byrne had taken into account the tests that had been administered by Dr Lonie and had also administered tests of his own. However, he had also taken into account the significance of the appellant’s ability to lead a normal life and, especially, his ability to perform the duties of his employment. Her Honour said:
“Professor Byrne thought that Mr Young had a mild cognitive disorder, amnesic subtype. He did not think it was so severe as to render him unfit for trial. In coming to that conclusion, he had regard to his strong general intelligence and his very good working memory. In fact, Professor Byrne described Mr Young as “sharp as a tack”. He said he has the ability to follow a trial and he will be assisted by perusing the transcripts. He can understand the case against him. He thought he did have capacity to give instructions. He thought he would be assisted by making notes on a transcript.
He thought he would also be assisted in giving evidence and in cross-examination by cueing of his memory, that is, that he is not asked, I suppose, tactically surprising questions in cross-examination, but that he is given context and structure to remind him of the general area of questioning before questions are asked. And I might add then that there will have to be accommodations at trial in this regard. It may be that Mr Young has to be given topics that cross-examination will cover ahead of time. It may be that he has to be given documents to set the context of a question before it is asked. And just in other ways, the questions will have to be fair so that he has the context and structure to cue his memory.
It may be that he needs breaks to discuss matters or to look over his notes to remind himself of any new information which is acquired, though, as I said earlier, Professor Byrne was quite clear about the fact that he would not need breaks for fatigue. He also did not think, that is, Professor Byrne did not think, that the stress of a trial would cause Mr Young’s condition to deteriorate in any way.”
As to Dr Reutens, her Honour found that she had conceded that the appellant would have no difficulty in comprehending the course of the trial and that he had a very good working memory. Her Honour said:
“She had assumed – she had given her opinion of unfitness based on the wrong assumption that Mr Young would be receiving new – wholly new or almost wholly new information throughout the trial as it progressed and would not have worked out a defence or instructions to a defence before the trial began. Once she was informed that all the documents which related to the trial and statements of Crown witnesses would have been provided to Mr Young well before the first trial and that he has had all that time, including the preparation time related to the two aborted trials, to look at them, she conceded that that would make a difference to her opinion and, in particular, that he would be much more able to perform in a trial than she had assumed – transcript 1-27.
She conceded that with limited new material, he would be able to follow the trial – transcript 1-28. She also conceded that if he was able to make notes through the trial and make notes on the transcript, it would assist him.
Lurking in Dr Reutens’ report is the idea that Mr Young might not have competent lawyers to assist him at trial or that he might somehow be intent on preparing a lot of the trial himself to save money. And he apparently has reached a point recently where his trial lawyers have withdrawn from acting for him. There is no evidence at all and no basis to think that Mr Young will act other than rationally in his own interests as to his representation at the trial. He is a very clever man, clever – more clever than the average of the general population, and I proceeded in giving the finding of this Court on the basis that he would therefore act rationally and employ lawyers to act for him at trial and that he would allow those lawyers to do their work. And, on that basis, as I say, I think that the evidence I prefer shows that he is fit for trial.”
The appellant does not challenge any of her Honour’s findings of fact. Instead, he contends that her Honour’s observations about allowances that might have to be made at the trial for the benefit of the appellant reveal that she made an error of law. He submits that these statements amount to a conclusion by her Honour that her “finding of fitness was subject to a number of changes to the way the trial would have to be run”. He submits that such changes “are not consonant with the common law adversarial and accusatory system of trial” and that a finding that “such extreme accommodations were required to compensate for an accepted mental disorder should have resulted in a finding that the appellant was not fit for trial”. This qualification to the finding of fitness is, the appellant submits, a “de facto finding that the appellant was unfit for trial”.
That submission should be rejected.
The submission misconstrues the significance of Dalton J’s remarks about the possible directions that a trial judge might make. Her Honour’s observations were made in the course of explaining the import of Professor Byrne’s evidence. He had said that the appellant was “sharp as a tack” and that he would be able to follow the trial. He understood the case against him, which, on the evidence, it might be noted, was very voluminous and involved the complexity that arises from many financial transactions. He had a capacity to give instructions.
Notwithstanding those clear opinions about aspects of the appellant’s capacity to stand trial, Professor Byrne added, as her Honour found, that the appellant would also be assisted by measures that could be directed to be taken at the trial. Her Honour then observed “that there will have to be accommodations at the trial”. Some of those possible accommodations were then stated.
It would be a misreading of her Honour’s reasons to regard her conclusion that the appellant was fit to stand trial as in any sense conditioned upon the trial being conducted in any particular way. That much is plain from her Honour’s use of expressions such as “it may be that” when discussing possible ways in which the usual trial process might be relaxed in favour of the appellant.
The directions that were mentioned are not unusual. They are things that are very frequently done to accommodate the circumstances of witnesses and of parties to proceedings. A witness who is a young child is not treated in the same way as a witness who is a competent adult. A party who does not speak English or who has a disability that affects the ability to follow proceedings is accommodated by measures that overcome the particular operative deficiency. In addition, s 21 of the Evidence Act 1977 (Qld), which empowers a court to disallow “improper questions”, is a power that can be invoked by a trial judge to ensure that, in cases in which the way of questioning may work an injustice, the process is altered to ensure fairness to a witness and to ensure that justice is done. Similarly, s 21A of the Evidence Act empowers a court to take appropriate measures when a witness is, among other categories, a person who would be likely to be disadvantaged as a witness by reason of a disability. None of this is either novel or foreign to the Australian system of justice. These provisions, as well as the inherent power of a court to regulate its own proceedings to ensure that a trial is fair according law, provide ample power to overcome handicaps borne by affected parties and witnesses.
As de Jersey CJ said in R v M the court will bear with an accused to ensure that the trial is fair and contemporary courts are sensitive to the varying needs of those who come before them. In the same case McPherson JA said that, while there would no doubt be difficulties in conducting a trial of a person with an intellectual disability, the courts are not unaccustomed to such cases. Such accommodation might slow down the trial, even to a considerable extent, but that does not give rise to an insuperable obstacle.
It was by no means certain that any changes would actually be required to the way in which the appellant’s trial would ordinarily be conducted. Her Honour did not find that that would be necessary. Whether or not the trial judge would make any directions would depend upon what happened at the trial. It was possible that no special directions would have to be made. Certainly, none would be necessary to allow the appellant to make contemporaneous notes or to have the benefit of daily transcripts.
Further, it is very significant that the appellant did not submit that, if directions of the kind mentioned were made, he would suffer any unfairness or prejudice of any kind. Rather, he submits that in principle a trial that involved the making of procedural directions to benefit him would not “be consonant with the common law adversarial and accusatorial system”. That submission cannot be accepted. On the contrary, the genius of the common law system is due, in part, to its ability to adapt its procedures to accommodate conditions such as those that may be presented by the appellant, and due also to the wide discretion that judges are given under that system to fashion trial proceedings to ensure that the trial is fair.
For these reasons, no error by the primary judge is demonstrated and the appeal should be dismissed.
PHILIPPIDES JA: I agree with the order proposed by Sofronoff P for the reasons given by his Honour.
McMURDO JA: I agree with Sofronoff P.
 DAR v DPP (Qld) & Anor  QCA 309; this was a decision that construed the analogous provisions in the Mental Health Act 2000 (Qld), however the current Act is in terms that are relevantly the same.
 VR 45.
 181 CLR 230, at 245.
 2 Qd R 415, at 422.
 203 CLR 1, at -.
 QCA 464, at .
- Published Case Name:
YE v Director of Public Prosecutions (Qld)
- Shortened Case Name:
YE v Director of Public Prosecutions
 QCA 247
Sofronoff P, Philippides JA, McMurdo JA
12 Nov 2019
- White Star Case:
No Litigation History