R v M[2002] QCA 464

SUPREME COURT OF QUEENSLAND

[1]  de JERSEY CJ:  The learned Judge constituting the Mental Health Court determined that the appellant is fit for trial in respect of aggravated charges of indecent dealing with a child under 16 years of age, permitting himself to be dealt with by the child and procuring the child to commit an indecent act upon him.  The appellant appeals against that finding, under s 334 of the Mental Health Act 2000. 

[2] The expression “fit for trial” is defined by the Act as:

“…fit to plead at the person’s trial and to instruct counsel and endure the person’s trial, with serious adverse consequences to the person’s mental condition unlikely.”

[3] It was accepted that the appellant would be fit to plead, and to endure a trial with serious adverse mental consequences unlikely.  The issue before Her Honour was whether the appellant would be fit to instruct counsel.  He is a 44 year old man with intellectual impairment ranking him, in terms of intellectual capacity, within the lowest one percentile of the community.  He is illiterate and innumerate and speaks with a marked impediment.

[4] The learned Judge considered that the appellant understood the nature of the charges against him.  There were inconsistencies within his account of the relevant facts, but the Judge was not satisfied they were necessarily referable to his diminished mental capacities.  Her Honour took the view that the appellant had “the capacity to follow proceedings and to instruct counsel adequately, albeit with special allowance being made (in time and explanations) for his disabilities”.  Referring to fitness for trial in context of the broad goal of securing a fair trial, Her Honour set out what was said in Kesavarajah v R (1994) 181 CLR 230, 243, per Mason CJ, Toohey and Gaudron JJ:

“In Reg v Presser, Smith J elaborated the minimum standards with which an accused must comply before he or she can be tried without unfairness or injustice [1958] VR 45 at 48.  Those standards, which are based on the well-known explanation given by Alderson B to the jury in R v Pritchard (1836) 7 Car & P 303 at 304; 173 ER 135 at 135, require the ability (1) to understand the nature of the charge; (2) to plead to the charge and to 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 the charge”.

[5] In approaching this issue, one does not overlook the circumstance that the appellant is represented by counsel (cf re Walton [1992] 2 Qd R 551, 554).  A person in the position of the appellant need not, therefore, in order to be tried fairly, appreciate the nuances of court procedure or the intricacies of the substantive law.  Consistently, in Ngatayi v R (1980) 147 CLR 1, 9, Gibbs, Mason & Wilson JJ said:

“…in deciding whether an accused is capable of understanding the proceedings so as to be able to make a proper defence it is relevant that he is defended by counsel.  If the accused is able to understand the evidence, and to instruct his counsel as to the facts of the case, no unfairness or injustice will generally be occasioned by the fact that the accused does not know, and cannot understand the law.  With the assistance of counsel he will usually be able to make a proper defence.”

[6] As to what level of understanding is required before a trial will be considered fair, their Honours pointed out that an accused person cannot “escape trial simply by showing that he is of low intellect” (p 8).  Referring to the “test” of what amounts to a fair trial, they went on (p 8):

“The test looks to the capacity of the accused to understand the proceedings, but complete understanding may require intelligence of quite a high order, particularly in cases where intricate legal questions arise.  It is notorious that many crimes are committed by persons of low intelligence, but it has never been thought that a person can escape trial simply by showing that he is of low intelligence.  We respectfully agree with the view expressed by Smith J in Reg v Presser (1958) VR 45, 48 that the test needs to be applied “in a reasonable and commonsense fashion”.  Smith J went on to say that there are certain minimum standards which the accused needs to equal before he can be tried without unfairness or injustice, but added that the accused “need not have the mental capacity to make an able defence”.

[7] The appellant’s fitness for trial should therefore be assessed in the recognition that he is represented by counsel, and that court proceedings may be structured in order to accommodate his disability.

[8] Addressing the particular issue arising under the statutory definition of “fit for trial”, that is, fitness to instruct counsel, Her Honour was faced with evidence from two psychiatrists, Drs Kingswell and Fama.

[9] In his written report, Dr Kingswell said:

“Mr M knew the nature of the accusations/allegations made by [J].  He could not put the correct name to the charges.  He said that he would tell his lawyer that he had been involved in the offences as [J] had said but did not know why.  He said he would contest that he had put his penis in her vagina.

…

Mr M has some basic understanding of court processes.  He is familiar with the nature of the complaints.  He can explain his involvement in them to some extent.  With slowing of proceedings and careful explanation it might be possible to try Mr M.  I think he would understand that he was being tried for an offence.  Obviously, he would not be able to follow proceedings and instruct counsel as sensibly as he might were he of normal intellect.  I think he barely meets the requirements for fitness for trial.”

[10]  When examined at the hearing, Dr Kingswell indicated that provided the court were accommodating, it would be practicable for the appellant to give appropriate instructions.  That emerges from the following passages of evidence:

“Would he be able to, in your opinion, to follow evidence and give comment upon it? – Well, I did say in my report that I thought that would be possible but only if you were prepared to slow the proceedings and explain things carefully and ensure that he’d understood it and, in practical terms, that might really constitute unfitness in that perhaps courts can’t tolerate that kind of disability.  They have other matters to consider.

…

So again it seems that you’re saying that so long as the Court is prepared to accommodate his disability by proceeding in a much slower fashion and explaining everything to him it may be possible that a fair trial could be conducted, that is a trial that he did understand what was being said and was able to actually offer some instructions? – That was the point of view that I put originally and I suppose that’s – that is the case, it’s just a matter, I expect, for the Court as to whether that’s practical.”

[11]  As Her Honour pointed out, “courts regularly accommodate cases where interpreters are required and where parties have no cultural familiarity or affinity with the court process”.  Comparable accommodation would be afforded in a case like this.

[12]  That evidence from Dr Kingswell was in my view sufficient to justify the approach taken by Her Honour.  The other expert witness, Dr Fama, was, it is true, less sanguine as to the appellant’s relevant capacity, concluding in his report that the appellant could “not reliably and relevantly offer comment upon evidence, nor could he coherently himself give evidence that would be clear and consistent”.  Her Honour is to be taken as not accepting that view.  Her conclusion found reasonable basis in the evidence of Dr Kingswell extracted above, and should therefore in my view be upheld.  It was not a case where, as submitted by Mr Rafter for the appellant, the evidence was all, or substantially, to the contrary effect.

[13]  Fitness for trial, in relation to the capacity to instruct counsel, posits a reasonable grasp of the evidence given, capacity to indicate a response, ability to apprise counsel of the accused’s own position in relation to the facts, and capacity to understand counsel’s advice and make decisions in relation to the course of the proceedings.  It does not extend to close comprehension of the forensic dynamics of the courtroom, whether as to the factual or legal contest.  For a person represented by counsel, fitness for trial of course assumes that counsel will represent the client on the basis of the client’s instructions.  That the giving of such instructions may take longer because of intellectual deficit is a feature with which courts should and do bear.

[14]  Questions of unsoundness of mind aside, the public interest warrants the trial of persons accused of criminal offences whether their level of intellectual capacity be normal or otherwise.  In this case, the appellant’s intellectual capacity means that the process of trial will probably be longer and somewhat disjointed.  But obviously that feature should not warrant disbanding the proceeding.  This appellant has the basic relevant understanding.  The court will bear with him to ensure his trial is fair.

[15]  To deny a person like this appellant a trial would, having regard to both his interest in responding to the charge and possibly having his name cleared (while acknowledging of course that he bears no onus), and the interest of the community in ensuring that criminal charges are properly pursued, be frankly inconsistent with the rule of law, essentially because it would be discriminatory.  Contemporary courts are sensitive to the varying needs of those who come before them.

[16]  This appellant enjoys limited intellectual capacity.  Acceptable evidence before Her Honour supported the view that, nevertheless, with sufficient accommodation from the court, the accused should be able adequately to instruct his counsel.  That warranted her conclusion of fitness for trial.

[17]  I would order (s 337 (1)(a)) that the decision appealed against be confirmed.

[18]  McPHERSON JA: I agree with the reasons of the Chief Justice.  There will no doubt be difficulties in conducting the trial of a person with the intellectual capacity of the appellant.  Accommodating his condition to the exigencies of ordinary court procedure will slow the trial down, and may do so to a considerable extent.  But the courts are not unaccustomed to such cases, as, for example, with trials of accused persons whose ability to hear and speak is grossly impaired.  In my experience, the delays in such cases have never been considered an insuperable obstacle to the conduct of a fair trial.

[19]  The appeal should be dismissed.

[20]  MULLINS J:  I agree with the reasons of the Chief Justice and that the decision appealed against should be confirmed.