R v Gibson[2022] QCA 151

SUPREME COURT OF QUEENSLAND

1. [1]
   THE COURT:  On 15 November 2019 the applicant filed an application for an extension of time within which to appeal and a notice of appeal against conviction in respect of convictions entered upon his pleas of guilty in the District Court at Cairns on 30 August 2013, 6 May 2015, and 4 August 2016.  The applicant’s notice of appeal contended that the convictions should be set aside because expert opinion evidence the applicant sought leave to adduce on appeal demonstrated he may not have had the capacity to instruct his lawyers or plead to the original proceedings, there was therefore a real and substantial question to be considered about the applicant’s fitness to plead at the time, and as a result a miscarriage of justice occurred.
2. [2]
   In this case there is no contemporaneous evidence that the applicant was not fit to enter his pleas of guilty on any of the three occasions between August 2013 and August 2016.  In R v Erskine,^[1] the Lord Chief Justice stated:

“Unless there is contemporaneous evidence to suggest that notwithstanding his plea and the apparent satisfaction of his legal advisers and the judge that he was fit to tender it, and participate in the trial, it will be very rare indeed for a later reconstruction, even by distinguished psychiatrists who did not examine the appellant at the time of the trial, to persuade the court that notwithstanding the earlier trial process and the safeguards built into it that the appellant was unfit to plead.”

3. [3]
   Of course, each case of this kind must be determined upon the evidence in the particular case.  In R v Dunn^[2] Margaret McMurdo P referred to that passage in Erskine, and to a passage in Lawler v The Queen^[3] in which O'Regan P emphasised the importance of contemporaneous evidence in considering the question of fitness for trial some years after an appellant’s convictions, and observed that Dunn was not a case, like Erskine or Lawler, where the issue of fitness to stand trial arose many years after the original trial; in Dunn, the issue arose within months of the trial.
4. [4]
   The manner in which fitness to plead is determined was explained by Smith J in R v Presser.^[4]  It is sufficient here to observe that, as Gibbs, Mason and Wilson JJ explained in Ngatayi v The Queen,^[5] that test “looks to the capacity of the accused to understand the proceedings, but complete understanding may require intelligence of quite a high order” and “it has never been thought that a person can escape trial by simply showing that he is of low intelligence”.  It was not necessary, however, for the applicant to establish in his proposed appeal that upon application of the Presser test he was not fit to plead.  An appellate court is bound to set aside a conviction if there was a miscarriage of justice, and such a miscarriage of justice is established if the appellate court concludes that the accused may not have been fit to plead and stand trial.^[6]
5. [5]
   At each of the three sentence hearings the applicant was represented by counsel.  In each case the applicant’s counsel informed the court of relevant instructions given by the applicant for the purpose of submissions on sentence.  In the earliest of the sentence hearings in August 2013, the presiding judge granted the applicant’s request that he be allowed to make submissions in addition to the submissions made by his counsel.  Nothing in the transcripts of that and the two subsequent sentence hearings supplies a ground for thinking the applicant might not then have been fit to plead.  Consistently with the terms of the notice of appeal, the proposed appeal would turn upon new expert opinion evidence which the applicant seeks leave to file.
6. [6]
   The applicant relied upon two reports by Dr Russ Scott, a forensic psychiatrist.  In Dr Scott’s report dated 1 October 2019, he opined:

“As early as when he entered pleas to the offences he was alleged to have committed in March 2013, Mr Gibson’s cognitive deficits were such as to deprive him of the capacity to meaningfully participate in criminal proceedings (that is, Mr Gibson has never been ‘fit to plead’ or ‘fit for trial’ in relation to any of the alleged sexual offences).”

7. [7]
   In a supplementary report dated 1 April 2021, Dr Scott repeated that opinion and he added that the applicant’s “cognitive limitations meant that he was not able to weigh up options and consider his position and give competent instructions to his solicitor… Mr Gibson would simply rely upon his solicitor to tell him what to do or opt for what appeared to him to be the most expedient option …[he] likely believed that the most expedient option was to simply plead ‘guilty’ having already served a period which he believed was likely to approximate the sentence he would receive”.
8. [8]
   The latter part of Dr Scott’s supplementary report (commencing “Mr Gibson would”) is consistent with the applicant having been fit to plead.  Nevertheless, if Dr Scott’s other opinions upon this topic were admissible in evidence, they would be sufficient to establish the applicant’s ground of appeal.  In that event, the affidavits by legal practitioners who represented the applicant at his sentence hearings and the medical reports upon which the respondent sought to rely would merely raise issues about the accuracy of Dr Scott’s opinion.  It would remain the case that Dr Scott’s evidence established a miscarriage of justice upon the basis that the accused may not have been fit to plead.  So much was accepted by the respondent at the hearing of the application in this Court.
9. [9]
   The respondent opposed the application for an extension of time upon the ground that Dr Scott’s opinion evidence was inadmissible.  The Court acceded to both parties’ requests that it decide whether that evidence was admissible before disposing of the application.  After hearing argument upon that question, the Court ruled that the evidence was inadmissible.  The Court indicated that reasons for the ruling would be published in due course, but that a primary basis for the ruling was the absence of a statement of the reasoning by which Dr Scott’s opinion was reached with reference to the underlying factual substratum.  The Court then adjourned the further hearing of the application to allow the applicant further time to decide what course he wished to take.  The applicant subsequently abandoned his proposed appeal.  These reasons explain why the Court ruled that Dr Scott’s evidence was inadmissible.
10. [10]
    The criteria which must be met if expert opinion evidence is to be admissible include that, so far as the expert’s opinion is based on facts observed by the expert, those facts must be identified and proved by the expert in an admissible way, so far as the opinion is based upon assumed or accepted facts, those facts must be identified and proved in some other way, it must be established that the facts upon which the opinion is based form a proper foundation for that opinion, and the expert’s evidence must explain how the field in which the expert has expertise applies to the facts assumed or observed in order to produce the opinion expressed by the expert.^[7]
11. [11]
    Before discussing Dr Scott’s reports reference should be made to other evidence the applicant sought to adduce in his proposed appeal.  Most of this evidence comprises opinions expressed by medical professionals about issues in a proceeding under the Dangerous Prisoners (Sexual Offenders) Act 2003 commenced by the Attorney-General in May 2017.  It is necessary to discuss only so much of this evidence as sheds light upon the different issue raised in this Court.
12. [12]
    A report dated 1 August 2017 by Dr Michele Andrews (clinical psychologist and neuropsychologist) refers to concerns having been expressed by psychiatrists in preceding reports in relation to a possible application pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003.  Dr Andrews referred to the history given by the applicant of his background.  That history included that the applicant had been receiving haemodialysis for the preceding three years.  Dr Andrews referred to results of her formal assessment using an abbreviated intelligence test: in summary, the applicant’s full scale IQ fell within the extremely low/intellectual impaired range.  Given the pattern of the more detailed results within that assessment, Dr Andrews considered that the applicant met the criteria for mild neuro-cognitive disorder secondary to a chronic substance abuse and general medical condition (renal failure).  She thought the aetiology of the applicant’s cognitive deficits was likely multifaceted.  The applicant had given a history of repeated blows to the head and an extensive history of alcohol and drug abuse, both of which would contribute to cognitive compromise.  Dr Andrews noted that chronic kidney disease, from which the applicant had suffered, was a known risk factor for dementia and cognitive decline.
13. [13]
    That report did not address the Presser test.  Furthermore, it was not addressed to the relevant period of time; it concerned the applicant’s mental state at a time which was some four years after the earliest of the applicant’s pleas of guilty, more than two years after the next in time of the applicant’s pleas of guilty, and about one year after the applicant’s most recent plea of guilty.  It is relevant, however, that Dr Andrews’ report describes as potential causes of the applicant’s cognitive compromise the cumulative effect of various events which occurred at times before the date of the report: repeated blows to the head, alcohol and drug abuse, and chronic kidney disease.
14. [14]
    The earliest of the medical reports upon which the applicant sought to rely which addresses the Presser test is a report dated 27 October 2018 by Dr Josephine Sundin (a forensic psychiatrist).  She interviewed the applicant at a correctional centre for two hours on 24 September 2018.  Dr Sundin did not express any conclusion about the application of the Presser test, but she made some relevant comments:  the applicant had informed her that in the past his lawyers had “broken down the details of a case against him so that “I pretty much understand”… I thought the quality of his limited comprehension of legal matters was well demonstrated in his final comment to me when we were discussing the nature of court processes when he told me that he would like me to tell the Judge that: “I want to change my sport to bull riding, to rodeo I want to do literacy and numeracy and go to TAFE”… There was general impoverishment of cognitions”.  Dr Sundin considered the applicant met the criteria for diagnosis of mild – moderate neuro-cognitive disorder, exhibitionistic disorder, alcohol use disorder, in sustained remission whilst in a controlled environment, and mixed personality disorder with anti-social and narcissistic traits.
15. [15]
    Dr Sundin’s report addresses the applicant’s mental state as at September 2018, about five years after the first of the applicant’s pleas of guilty, nearly three and a half years after his second plea of guilty, and some two years after the most recent plea of guilty.  Dr Sundin also considered that the applicant’s intellectual impairment had worsened during the period after he had entered the relevant pleas of guilty, when he was being assessed by various medical professionals about issues arising in the proceeding under the Dangerous Prisoners (Sexual Offenders) Act 2003.  She observed: “In reflecting on his neuro-cognitive disorder and the atypical history of his sexual offending, it struck me that his sexual offending and increased impulsiveness appears to parallel the time that he commenced renal dialysis.  I am uncertain of the significance of this but wonder if the dialysis has caused further cognitive impairment in a man who was already intellectually impaired.”  Dr Sundin also referred to concerns previously expressed by Dr Madsen that the applicant was showing “further evidence of impaired executive cognitive function and frontal lobe deficits”, which “would further impair his capacity and general fitness for trial”.
16. [16]
    It is significant that, consistently with those reports, Dr Scott considered the applicant’s cognitive deficits had worsened after he had entered the relevant pleas of guilty; Dr Scott opined in his report of 1 October 2019 that the applicant suffered from “a natural mental infirmity and an acquired mental illness (cognitive deficits of an intellectual disability of multi-factorial aetiology)” and that “[s]ince his last conviction in August 2016, Mr Gibson’s cognitive deficits have further deteriorated”.  None of the other medical professionals who provided reports sought to be adduced in evidence in this application expressed a contrary opinion.  Yet Dr Scott’s reports do not explain why his conclusions about the applicant’s incapacities as at August 2019 might also be applicable at the times when the applicant pleaded guilty between three and six years earlier.
17. [17]
    Dr Scott assessed the applicant over two hours at a correctional centre on 30 August 2019.  At the commencement of his report of 1 October 2019 he also recorded that the applicant was convicted of a number of sex offences on his pleas of guilty entered between August 2013 and August 2016.  The heading “Executive Summary” follows immediately after that introductory part of the report.  It is this section of the report which contains Dr Scott’s expression of opinion set out in [6] of these reasons.  (Dr Scott also expressed the opinion that the applicant’s intellectual disability “did not deprive him of any of the relevant capacities” but that seems to have been a reference to capacities required for the applicant to have been guilty of the offences, since it appears immediately after reference to a possibility that the applicant was intoxicated at the relevant time of some of the offences and immediately before the expression of Dr Scott’s opinion that the applicant’s cognitive deficits rendered him not fit to plead.)
18. [18]
    The final sentence under the heading “Executive Summary” is: “Currently, Mr Gibson does not have capacity to meaningfully participate in any criminal proceedings (that is, Mr Gibson is ‘permanently unfit for trial’).”  It is that opinion – rather than the opinion upon which the applicant’s proposed appeal was based – to which most of the balance of Dr Scott’s report relates:

    1. (a)
       The next section of the report, headed “Developmental History”, contains a general history by the applicant of his early life.  This includes references to the applicant reporting that his parents abused alcohol and that from during his late childhood and early adolescence he lived with his grandmother and an aunt.  The applicant told Dr Scott that although he struggled at school he did not receive special assistance and was not formally assessed, he could not concentrate, was not able to complete tasks, and frequently disrupted class.  He repeated grade five, finished grade seven, and although was required to repeat grade six and seven he was expelled before completing grade seven.  The applicant reported that he had various unskilled employments and for two and a half years in his early thirties he was an indigenous police liaison officer.  He also said that it was too hard for him to complete the medium intensity sex offender program in 2014 because he didn’t understand what the psychologists wanted him to do.

None of this establishes an arguable case that the applicant was unfit to plead between 2013 and 2016 and the report does not explain if or how any of these matters supported the critical opinion expressed in the report.

2. (b)
   Under the next heading, “Substance Use History”, Dr Scott recorded statements by the applicant that he had begun drinking alcohol from age 13, developed a “binge pattern” of drinking, frequently drank until he passed out, and regularly had “black-outs” when he could not remember what had happened after he started to drink.  The applicant also reported that from age 14 he began smoking cannabis.  There were periods when he was stoned all day.  This section does not include reference to any material impact of the described conduct upon the applicant’s relevant capacities.
3. (c)
   Under the heading “Relationships”, the applicant reported some extremely traumatic events in the applicant’s relationships with others.  This is not said to have any relevance to the present issue.
4. (d)
   Under the heading “Medical History”, the doctor reported statements by the applicant that at some unidentified time he had sustained many minor head injuries and concussions but that he could not recall having had any prolonged periods of unconsciousness or having been taken to hospital for a serious head injury.  No dates of those events or other facts are identified as support for a conclusion that the suggested minor head injuries and concussion might have resulted in the applicant lacking fitness to plead years before the date of this report.

The applicant also reported that in 2010 he was diagnosed with renal failure and undertook dialysis three times a week from 2013.

5. (e)
   Under the heading “Forensic History”, Dr Scott recorded the applicant’s criminal history, which commenced with a conviction in the Childrens Court in June 1993.  The history is lengthy, and it includes reference to the applicant’s versions of events relating to the offences to which he pleaded guilty between August 2013 and August 2016.  This is not relevant.
6. (f)
   Under the heading “Reports of Psychiatrists, Psychologists”, Dr Scott referred to extracts from the many reports that had been prepared about the applicant from March 2017 until 1 August 2019.  None of the extracts address the applicant’s mental state as at any earlier time.
7. (g)
   In the next section, “Opinion – Dispute of Facts”, the report refers to the applicant disputing that he committed some of the offences for which he was convicted.  Dr Scott considered the dispute did not arise as a consequence of the applicant’s mental condition.  This is not relevant.
8. (h)
   Under the next heading, “Opinion – Intoxication”, Dr Scott mentions that it was possible that the applicant was intoxicated at the time of some of the offences but that there was no evidence to that effect.  This is not relevant.
9. (i)
   The next section of the report is headed “Opinion – Mental Illness, Natural Mental Infirmity”.  This part of the report describes the mental state of the applicant in the present tense, thereby referring to the time when Dr Scott interviewed the applicant on 30 August 2019.  Dr Scott here refers to the “etiology of Mr Gibson’s intellectual disability and cognitive deficits, which also include amnesia for past events, are likely being multi-factorial”.  There follow four sub-headings.
10. (j)
    The first sub-heading is “Foetal Alcohol Spectrum Disorder”.  This section, which includes a series of general statements about that disorder, appears to be important for Dr Scott’s opinion, but the relevance of this topic entirely depends upon the opinion expressed in the first sentence that “Mr Gibson’s mother likely used alcohol during her pregnancy with Mr Gibson.” Obviously enough that is not something about which the applicant could give evidence and the report does not suggest that the applicant made any statement to that effect.  Dr Scott does not identify any fact, and there is no evidence before the Court, that is capable of supporting that opinion.  Similarly, the second sentence, “Alcohol is a teratogen (an agent that can disturb the development of the embryo or fetus resulting in congenital malformations or defects)”, is not accompanied by reference to any factual basis for an opinion that there was in this case any such disturbance of the development of the embryo or fetus of the kind described.
11. (k)
    Under the sub-heading “Concussions and minor closed head injuries”, the text refers to possible results of severe head injury or repeated concussions and minor closed head injuries as including cumulative effects on cognitive function.  Again, there is no reference to any date or other factual basis for thinking there might have been any relevant effect on the applicant’s cognitive function resulting from any head injury or concussion.
12. (l)
    Under the sub-heading “Alcohol abuse”, there are general statements about the probability of individuals with alcohol use disorders experiencing neuro-cognitive impairment.  Again, there is no reference to any fact capable of supporting a conclusion that the applicant’s reported abuse of alcohol had a bearing upon his fitness to plead between August 2013 and August 2016.
13. (m)
    Under the sub-heading “Chronic renal failure and haemodialysis”, Dr Scott referred to an association between deteriorating renal function and decline in cognitive capacities, and a relationship between end-stage renal disease in patients on chronic haemodialysis and cognitive impairment.  The only reference in this report to the time when the applicant had end-stage renal disease is to a report dated 21 January 2019 in which a nephrologist listed end-stage renal disease as one of the medical conditions.  There is no reference to any fact that might suggest that the applicant’s renal disease or the dialysis materially affected the applicant’s cognition between August 2013 and August 2016.
14. (n)
    The next section in the report is headed “Opinion – Question of Unsoundness of Mind”.  Dr Scott concluded that at the relevant times of the alleged offences, the applicant’s intellectual disability did not deprive him of any of the relevant capacities.  This is not relevant.
15. (o)
    The next section is headed “Mental State Examination”.  This section comments only upon the assessment of the applicant as at 30 August 2019.
16. (p)
    The penultimate section of the report is headed “Opinion – Question of Capacity to Meaningfully Participate at Trial”.  This might be thought to be the critical section of the report for present purposes but except for two unexplained conclusions this section is addressed to the applicant’s capacities as at the time of the report:

    1. Under the sub-heading “Capacity to understand the substantial effect of evidence that may be given against him”, Dr Scott describes the relevant deficits in the applicant’s capacities in the present tense.  (For example, Dr Scott’s report states that, “Mr Gibson will easily become confused about his previous offences and past court appearances”.)  In the concluding paragraph of this sub-section of the report, however, in a sentence commencing, “Mr Gibson has little insight into the effects of his cognitive impairment, saying only “My memory’s not good”, Dr Scott concludes:

“Mr Gibson did not have the capacity to understanding (sic) the ramifications of his pleas including the potential for the prosecution to make a submission for an indefinite sentence or the potential for the Attorney-General to make an application for an order pursuant to the Dangerous Prisoner (Sexual Offenders) Act”.

2. (ii)
   Similarly, although in most of what follows under the next sub-heading “Capacity to make a competent plea to his charges and to instruct solicitors”, Dr Scott expresses opinions in the present tense, he includes a conclusion about Mr Gibson’s capacity many years beforehand:

“At the time he pleaded to his previous charges, Mr Gibson did not have capacity to understand the possible ramifications of his convictions”.

19. [19]
    Those two conclusions do not rise above the level of assertion.  There is no reference to a factual basis for the conclusions or any reasoning which relates them to the balance of the report which addresses the applicant’s then current mental state.
20. [20]
    Dr Scott’s supplementary report dated 1 April 2021 is dedicated to a critique of evidence supplied to Dr Scott which did not support his opinion.  Otherwise, the supplementary report repeats the opinion expressed about the applicant’s fitness to plead in the first report without identifying any basis for that opinion.  At the hearing of the application, counsel for the applicant also referred to an email by Dr Scott dated 13 November 2019.  That email contains expressions of opinion by Dr Scott which do not substantially differ from those in his supplementary report.  Like Dr Scott’s reports, the email does not explain how those opinions were reached.
21. [21]
    The absence of reasoning made with reference to an identified factual basis for Dr Scott’s opinions required the conclusion that his reports were inadmissible.