Re Stuart[2015] QMHC 12

MENTAL HEALTH COURT

1. [1]
   BODDICE J: By Reference, filed 2 September 2014, the defendant’s legal representatives referred to this Court the mental condition of the defendant, Derek George Stuart, at the time of one charge of unlawful stalking, alleged to have occurred between 16 March 2014 and 4 April 2014.
2. [2]
   Although the question of soundness of mind was referred to this Court, it is accepted by all parties that there is such a dispute of fact within the meaning of s 268 of the Mental Health Act 2000 (Qld) such that this Court cannot make a determination as to the defendant’s soundness of mind as at the date of the index offence.  At issue is whether the defendant is fit for trial.

Background

3. [3]
   The defendant was born on 24 August 1983.  As at the date of the index offence, the defendant was 30 years of age.  The defendant is single and has no children.  The defendant drinks alcohol infrequently, and does not take illicit substances.  The defendant does not have any past criminal history.
4. [4]
   The defendant resided with his mother, father, elder sister and younger sister until he was 13, at which point his parents separated and his father relocated to the United Kingdom.  As a child, the defendant had difficulties socialising with other children.  In 1997, when aged 14, the defendant was diagnosed with Asperger’s Syndrome (now referred to as Autistic Spectrum Disorder), although one of the reporting psychologists questions this diagnosis.^[1]
5. [5]
   In 2007, when the defendant was aged 20, his father offered to care for him in the United Kingdom.  The defendant relocated but his relationship with his father and stepmother deteriorated, as did his mental health, and his mother arranged for him to return to Australia in 2009.  The defendant apparently participated in some paid bar work while he was residing in the United Kingdom.  However, the defendant has not been able to arrange full-time paid employment in Australia.  The defendant is currently employed a few days a week delivering pamphlets.  Gaining full-time employment is one of the defendant’s major personal goals.
6. [6]
   The defendant now lives by himself in a studio apartment in Chermside, which is provided as part of an affordable housing scheme.  The only immediate family member the defendant maintains regular contact with is his mother.  The defendant does have some contact with his younger sister.  The defendant has not had contact with his older sister for many years.  The defendant describes her as “emotionally unstable”;^[2] she is apparently volatile, prone to tantrums and abuses other family members.  The defendant was not aware of his older sister, nor any other family members, being formally diagnosed with any mental illnesses.
7. [7]
   The defendant lives a socially isolated life,^[3] with much of his social interaction occurring on social networking or dating sites.  The defendant’s mother reported that he posts inappropriate material on Facebook, including material which she considers “obscene”, sexually- and socially-inappropriate.^[4]  The defendant’s relationship with the complainant has been his only lasting romantic relationship. 

Medical history

8. [8]
   The defendant’s medical history is complex, and characterised by comorbid neurological, audiological and psychiatric conditions.  In his interviews with the reporting psychiatrists, the defendant was unable to provide a complete account of his medical history.  That inability may be a function of both the defendant’s limited insight into the challenges he has with executive functioning and higher-level thinking, and his preference for living an independent life with limited assistance.^[5]  Accordingly, much of the medical history contained in the reporting psychiatrists’ reports was provided or particularised by the defendant’s mother, who accompanied him to some, but not all, of the interviews.
9. [9]
   The defendant has a congenital bilateral hearing loss.  A Magnetic Resonance Imaging (MRI) scan performed on the defendant has revealed he has a brain stem lesion. Genetic testing conducted on the defendant has indicated he has additional chromosomal material on chromosome 11.  Two of the defendant’s paternal cousins apparently have similar conditions.  Both the defendant’s hearing loss and his brain stem lesion have been attributed to this chromosomal abnormality.  The defendant declines to wear hearing aids to ameliorate his hearing loss, or consult a neurologist in relation to the management of his brain stem lesion.
10. [10]
    At ten months of age, the defendant began having seizures.  In 1992, when the defendant was aged 9, he was diagnosed with primary generalised epilepsy.  The defendant was prescribed anticonvulsant medication.  The defendant took that medication as a child, but declined to continue taking that medication as an adolescent or adult.  The defendant continues to have absence seizures.
11. [11]
    The defendant achieved the majority of expected childhood developmental milestones.  However, the defendant had significantly delayed speech, and developed an idiosyncratic speech which only his family understood.  As a child, the defendant received intensive speech therapy.  As an adult, the defendant has an expressive language impairment, marked by mispronunciation of words, use of words in the wrong context, difficulties in finding words and difficulties in organising language so as to convey his message.^[6]  A speech pathology assessment has indicated that the defendant has severe impairments in language fundamental, narrative telling, language organisation, verbal reasoning and problem solving.  The defendant has difficulty understanding and responding to complex or lengthy questions, and may require information to be repeated and simplified.

Educational history

12. [12]
    As a consequence of his language deficits, the defendant was required to repeat pre-school.  According to the defendant’s mother, he always struggled academically, even when he was in primary school.  However, the defendant’s difficulties became especially apparent when he was in year four.  Even after the Education Department provided him with extra assistance, the defendant continued to struggle.  The defendant was resentful of this assistance, which he felt stigmatised him with his peers.^[7]
13. [13]
    The defendant attended secondary school.  A cognitive assessment at age 14 documented the defendant’s verbal IQ as 54, and his performance/non-verbal IQ as 84.  When he was aged 15, after completing year nine, his mother removed him from school and enrolled him in a Red Cross program.  The defendant completed certificate courses for 12 – 18 months. 

Psychiatric history

14. [14]
    The defendant was reluctant to discuss his psychiatric history with police or the reporting psychiatrists. However, the defendant’s mother reported he was diagnosed with depression in 1992, when he was aged 9.  The defendant has been hospitalised, in Australia when he was aged 17, and in the United Kingdom when he was aged 20, for severe depression.  The defendant has advised he would not take any prescribed medication for depression.
15. [15]
    The defendant receives the Disability Support Pension and other assistance from a non-government organisation.  The defendant manages his finances independently and was recently able to save enough money to purchase a television and take an overseas holiday.  A  Department of Communities, Child Safety and Disability Services report from 26 June 2015 states that the defendant’s score on a particular functional needs assessment tool indicates he has limited personal care and/or regular supervision needs.  However, he may have exaggerated his capabilities in that assessment.^[8]
16. [16]
    The concern as to the defendant’s level of daily functioning is consistent with the report from the defendant’s mother.  According to the defendant’s mother, he has difficulties with basic self-care; he does not shower regularly, wears unclean clothes and does not clean his teeth.^[9]  The defendant apparently has limited insight into this issue.  The defendant’s mother is responsible for all of his legal paperwork.

Index offence

17. [17]
    The complainant is a 48 year old woman, employed as a nurse in South Brisbane. As at the date of the index offence, the complainant was married with children. In April 2013, after the complainant ‘liked’ a crude jokes page on Facebook which the defendant had also ‘liked’, he sent her a Facebook ‘friend request’, which she accepted.
18. [18]
    Initially, the complainant and the defendant developed a platonic relationship.  They communicated by sending each other text and Facebook messages online before meeting in person in May 2013.  They continued to communicate with each other daily after that point.  They began a romantic relationship in either in June (the defendant’s version) or September (the complainant’s version) 2013.
19. [19]
    The complainant and the defendant first split up in December 2013.  The complainant alleges the defendant “would not take no for an answer”^[10] and continued to send her text messages, call her phone, and write letters to her and her daughter. They started talking again and resumed their relationship later that month.  The complainant says she and the defendant split up three or four other times before April 2014.  On each occasion, the complainant would end the relationship, and then, at the defendant’s urging, they would reconcile.
20. [20]
    The index offence arises out of the defendant’s conduct towards the complainant after they finally broke up on 17 March 2014.  The complainant alleges the defendant:

    1. from 18 March to 3 April 2014, sent text messages from his mobile phone and from public telephones to her mobile phone, some of which she felt were threatening.  The defendant also sent Facebook messages and called her phone;
    2. between 18 and 24 March 2014, delivered two hand-written letters to her workplace in South Brisbane, at least one of which she felt was threatening;
    3. on 25 and 27 March 2014, visited her home; and
    4. on 29 March 2014, approached her outside her workplace.

Reporting psychologists

21. [21]
    Dr Pollock interviewed the defendant on 16 June 2014 and conducted a cognitive assessment on him on 2 July 2014. The assessment was carried out in a single session (as the defendant declined to take a break).  Dr Pollock produced a report dated 14 July 2014.  Dr Pollock does not comment on whether the defendant’s mother accompanied him to the appointments. 
22. [22]
    Dr Pollock developed a good rapport with the defendant, who was feeling “well” and was in a “good” mood.^[11] The defendant cooperated with Dr Pollock throughout the interview and assessment.  Dr Pollock opined the defendant was able to comprehend test instructions and sought clarification as required.  The defendant was able to maintain his attention and concentration for the duration of the assessment, although Dr Pollock considered he had little persistence in the face of challenging tasks.
23. [23]
    Dr Pollock administered the following tests to the defendant: Advanced Clinical Solutions (ACS) selected subtests; Wechsler Adult Intelligence Scale Fourth Edition (WAIS-IV) selected subtests;^[12] Adaptive Behaviour Assessment Scale - Adult (ABAS-A); and Depression, Anxiety and Stress Scales (DASS).  The results of those tests are reported in descriptive ranges (indicating a person’s score relative to the scores of people of similar ages) from very superior, superior, high average, average, low average, borderline and extremely low. 
24. [24]
    In almost all of the tests administered, the defendant was within the low average to extremely low range.  The defendant’s overall performance on a composite of tests assessing verbal comprehension was within the ‘extremely low’ range (in the second percentile).  The defendant’s overall performance on a composite of tests assessing his ability to process and respond to visuospatial information and solve visual problems was within the ‘low average’ range (the 18^th percentile).  The defendant’s overall performance on a composite of tests assessing processing speed was within the ‘low average’ range (the 10^th percentile).  The defendant’s overall performance on a composite of tests assessing auditory attention and working memory were within the low average to borderline range (the 9^th percentile).  The defendant’s general adaptive functioning skills fell in the ‘extremely low’ range (1^st percentile).  The defendant’s self-reported levels of depression, anxiety and stress indicated he was within the ‘normal’ level of functioning.
25. [25]
    The defendant did not strictly meet the criteria for a Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V) diagnosis for an intellectual disability, as three of his cognitive indices scored above 70.  However, Dr Pollock opined that the defendant was significantly impaired, due to the deficits in his cognitive functioning, higher order language and adaptive functioning.
26. [26]
    Dr Andrews interviewed the defendant on 24 July 2014, for about four and a half hours (with two short breaks totalling 45 minutes).  Dr Andrews produced a report dated that same day.  The defendant’s mother accompanied him to the appointment.  Dr Andrews characterised the defendant as having “fair”^[13] personal grooming, but commented he had dirt accumulated underneath his fingernails and had a “distinctive”^[14] body odour.
27. [27]
    Dr Andrews developed a superficial rapport with the defendant.  The defendant cooperated with Dr Andrews throughout the interview and was responsive to her questions.  Dr Andrews opined the defendant’s mood was slightly dysphoric.  The defendant reported having low mood since being charged by police with the index offence.  The defendant became agitated during the interview, while discussing the difficulties he had had with his solicitor, but he was able to reduce the volume of his voice at Dr Andrews’ request.
28. [28]
    The defendant was able to concentrate throughout the assessment.  Dr Andrews opined that the defendant was often side-tracked when discussing issues related to the index offence, although he was able to be redirected.  Dr Andrews observed that throughout the interview, the defendant’s thinking processes were “very literal”.^[15]   Dr Andrews opined the defendant had difficulty thinking abstractly or understanding the mental states of other people.
29. [29]
    Initially, the defendant denied to Dr Andrews that he had any medical disorders.  However, when questioned, the defendant said he did have Autistic Spectrum Disorder, which affected his understanding of information and his ability to communicate with people.  The defendant also eventually accepted he has absence seizures.  Similarly, the defendant denied he had any psychiatric illnesses.  The defendant subsequently admitted he had previously experienced depression and that he had had depressed mood following his relationship breakdown and criminal charges.
30. [30]
    Dr Andrews administered multiple assessment instruments to the defendant.  The defendant’s performance on the WAIS-IV indicated significant variability.  The defendant’s performance on verbal tasks was within the ‘extremely low’ range, while his performance on tasks assessing visual-spatial skills, working memory skills and processing speed skills fell within the ‘low average’ range.  The defendant’s adaptive functioning skills were assessed as being within the ‘extremely low’ range.  Of particular relevance were the defendant’s memory difficulties.  The defendant “demonstrated severe impairment in verbal memory, including memory for structured information (e.g. a short story) and unstructured information (e.g. a list of words).”^[16]
31. [31]
    In Dr Andrews’ testing, the defendant “demonstrated moderate to severe impairment in expressive language skills, including appropriate use of words and expression of ideas, the ability to organise language/verbal information and an impaired ability to accurately sequence information.” According to Dr Andrews, although the defendant can take in and process uncomplicated information, he has difficulties in taking in information of an abstract nature, or more than a couple of sentences in length.
32. [32]
    Dr Andrews administered the MacArthur Competence Assessment Tool – Criminal Adjudication (“MacCAT-CA”).^[17]  On the understanding scale, the defendant’s score placed him within the ‘mild impairment’ range; in the reasoning and appreciation scales, his score placed him in the ‘clinically-significant impairment range. 
33. [33]
    Dr Andrews noted the defendant’s comments that he feels he will be treated unjustly, because his victim is female and the Court will see her as a “victim” and “fragile”.^[18]  Of particular concern was the defendant’s belief that his lawyer will assist him less than other people in similar circumstances, and his perception that his lawyer dismisses information and does not listen to his point of view.  Additionally, the defendant said that if information was brought up in Court which was incorrect, he would not inform his solicitor.
34. [34]
    Ultimately, Dr Andrews considered that the defendant displays symptoms consistent with Autism Spectrum Disorder Level 1 (associated with a genetic condition).  Those symptoms were impairment in social and emotional reciprocity, deficits in non-verbal communication (including facial expression and eye contact), deficits in developing, maintaining and understanding relationships, and rigid thinking patterns.
35. [35]
    In terms of fitness for trial, Dr Andrews opined that the defendant generally understands the concepts of guilty and not guilty, and what it is to provide a plea.  The defendant also had a basic understanding of the proceedings and the roles of court personnel, although that understanding could be enhanced by education.  Dr Andrews differentiated between Mr Stuart’s capacity to intellectually understand the charge of stalking and what constitutes stalking, and his incapacity to apply this to his own behaviour.
36. [36]
    In evidence, Dr Andrews opined the defendant has Autism Spectrum Disorder, although she acknowledged this opinion was largely based on his previous diagnosis, as well as on his clinical presentation and the information his mother had provided.  Dr Andrews said she was “concerned” about fitness for trial.^[19]  Dr Andrews conceded that the defendant now had a different solicitor, and that it was the previous solicitor with whom he had issues  ^[20]  Dr Andrews recognised that if the Court were to provide the defendant with additional time and further explanations, “he may be able to stand trial … it depends on what sort of allowances the Court can make.”^[21]

Dr Lucille Douglas

37. [37]
    Dr Douglas interviewed the defendant on 16 February 2015. The assessment consisted of a 20 minute clinical interview, an hour of cognitive testing, a short break, an hour and a half of cognitive testing and then 45 minutes for psychosocial testing.  Dr Douglas produced a report dated 8 June 2015.  The defendant apparently attended his appointment alone.  Dr Douglas commented the defendant had a “noticeable”^[22] body odour.
38. [38]
    The defendant reported to Dr Douglas that he had difficulty communicating with people; no matter how hard he tried, he could not engage in normal social talk.  The defendant also reported he had been diagnosed with Asperger’s Syndrome.  Dr Douglas expressed doubt about whether the defendant has Asperger’s Syndrome.  The defendant did not have a number of symptoms which are characteristic of Asperger’s Syndrome, such as being inappropriate, uncooperative or having any rigid, stereotypical interests.  Further, the defendant has several symptoms which are not consistent with him having Asperger’s Syndrome, such as his below-average intellectual abilities and language difficulties. Dr Douglas opined the defendant’s symptoms could also be attributed to his hearing loss, epilepsy and expressive language difficulties.
39. [39]
    Dr Douglas emphasised the importance of assessing an individual’s cognitive effort and motivation when taking psychological tests, and administered several tests to assess whether the defendant was applying sufficient effort.  Dr Douglas opined that the defendant’s performance on these tests was such that there was no reason to consider his obtained test scores as being an inaccurate reflection of his current cognitive capabilities.
40. [40]
    On assessing the defendant’s intellectual abilities, Dr Douglas obtained similar results to those obtained by the other reporting psychiatrists.  The defendant’s full-scale IQ was 74 (which placed him in the 4^th percentile).  By comparing the defendant’s predicted IQ scores with his actual WAIS-IV score, Dr Douglas concluded that his current overall level of intellectual functioning is significantly compromised by his impaired verbal and linguistic abilities.
41. [41]
    In order to assess the defendant’s likely overall level of developmental functioning, Dr Douglas administered the Beery-VMI (a visual task) and the PPVT-IV (a verbal/linguistic task).  Dr Douglas opined that while the defendant’s overall visuoperceptual skills were in the 18^th percentile (‘low average’ range), and his visuomotor skills were in the 10^th percentile (also ‘low average’ range), his combined visuoperceptual and visuomotor skills were in the 1^st percentile (‘extremely low’ range).  Dr Douglas opined that on the PPTV-IV, a verbal language task which assesses verbal comprehension skills independently of speech skills, the defendant’s language comprehension abilities were in the 21^st percentile (‘low average’ range).  Dr Douglas commented that “whilst [the defendant’s] expressive language skills may be notably impaired … his capacity to understand the spoken word is in fact relatively unimpaired and falls at a level equivalent to someone who has completed 11 years of formal education.”^[23]
42. [42]
    As the defendant had recently had his verbal learning and verbal memory functioning assessed by Dr Andrews, Dr Douglas administered a more limited test for these abilities.  Dr Douglas opined that the defendant’s overall verbal learning skills fell in the ‘extremely low’ range, just as they had in Dr Andrews’ testing.  The defendant was only able to acquire 7 words of a 15-word list, and most of those words were from the beginning of the list, indicating a notable primacy effect.  The defendant forgot half of the words he had initially recalled after a 20 minute delay.  Dr Douglas noted that this would have implications for the defendant’s ability to recall evidence in a trial setting.
43. [43]
    Dr Douglas opined that although the defendant has low overall cognitive resources, only his verbally-based intellectual skills reflect impaired functioning, and this is due to a speech/language disorder, not an intellectual/cognitive deficiency.  The defendant does understand the charges against him (and in fact disputes many of the allegations made against him) and has the capacity to plead to the charge.  Dr Douglas considered that his capacity to exercise the right of challenge “is a more difficult question to answer”,^[24] without elaborating on why that might be the case.
44. [44]
    As for his capacity to follow Court proceedings, Dr Douglas opined that the defendant’s ability would be “negatively impacted, but not insurmountable.”^[25]  One way to ensure the defendant could participate effectively in the proceedings would be for parties to agree on questions for him in advance, to provide those questions to him in writing, and check with him that he has understood what has been asked of him.  Given the defendant’s difficulties with language, Dr Douglas advised that cross-examination would be particularly difficult from him.  The defendant would not have the ability to engage with questions which were phrased as double negatives, or which were intended to manipulate his evidence in some way.  Dr Douglas recommended that consideration be given to how the defendant’s hearing difficulties might affect his participation in proceedings.
45. [45]
    In evidence, Dr Douglas maintained her opinion the defendant does not have Autism Spectrum Disorder.  She considered “there are far more parsimonious explanations for the difficulties with which [the defendant] presents.”^[26]  In terms of the defendant’s fitness for trial, Dr Douglas opined that the defendant’s poor performance on the working memory index and the verbal comprehension index would “not necessarily”^[27] impact on those abilities, as “both [of] those indices have tests administered where the individual has to listen to the examiner and then respond verbally.  So because [the defendant] has a severe expressive language difficulty … both those particular indices are very low.  When you remove the expressive language component and assess [the defendant’s] capacity to understand what either he reads or hears, that’s within normal limits.”^[28] 
46. [46]
    Dr Douglas also opined that the defendant’s comprehension of information is better if that information is in written, as opposed to spoken, form.  However, in Dr Douglas’ opinion, that was not the critical issue; of more importance is the defendant’s capacity to respond to questions. Dr Douglas opined:

“[T]he issue is not [the defendant’s] capacity to understand it if it’s in that form...  The issue will be in [the defendant’s] capacity to then express what he needs to say and wants to say in a way that will be easily understood by other people.  That’s where [the defendant’s] limitation lies.  I think [the defendant] could do it, but it would require quite significant leeway from the court.”^[29]

47. [47]
    Dr Douglas emphasised the defendant would need time to consider and respond to questions.  Dr Douglas opined the defendant loses well over half the information he is able to retain within 20 minutes, so the defendant has an attention span of something more than five minutes per question, but the questions would need to be kept “separate, contained and very focussed”.^[30]  In Dr Douglas’ opinion, the defendant could sit through an hour and a half or two hours of questioning, as he had managed similar tasks during his interviews with the police officers and reporting psychologists and psychiatrists. Repetition would help, as would keeping those questions simple.

Reporting psychiatrist

48. [48]
    Dr Schramm interviewed the defendant on 19 March 2015.  The interview was of about four hours duration, which he “endured … although clearly [at] times found it an ordeal.”^[31] Dr Schramm produced a report dated that same day.  Dr Schramm described the defendant as looking “dishevelled” for their interview; he had food on his shirt and wore a dirty baseball cap throughout.^[32]
49. [49]
    Dr Schramm opined that “there was always a strangeness in the rapport” ^[33] with the defendant, although the defendant was able to pick up some of the doctor’s emotional tone.  In apparent contrast to his difficulties communicating generally, Dr Schramm said there were “some problems with diction and grammar, but for the most part he was able to be understood easily.”^[34]
50. [50]
    The defendant provided Dr Schramm with a similar personal history (although some dates and ages differed slightly) to that provided to the reporting psychologists.  The defendant reported an interest in World War II and the Holocaust, which, contrary to Dr Douglas’ characterisation, Dr Schramm considered “stereotypical and narrow.”^[35] 
51. [51]
    In relating the index offence to Dr Schramm, the defendant became “extremely distraught”.^[36]  However, with time and patience, the defendant was able to provide an account which was not only “detailed and coherent” but also “differ[ed] markedly from that of the complainant.”^[37]  The defendant emphasised the tumultuous nature of their relationship, as well as his confusion at the complainant’s behaviour around their break-ups.
52. [52]
    Of particular relevance, the defendant was “well aware (without [Dr Schramm] having to tell him) that [the complainant] was stating that she had broken up with him on 17 March 2014 but he insists that she is lying about that date.  [The defendant] believes that [the complainant] has chosen that date because, on the day after the real break-up … [she] was on Facebook ‘bragging that she has been seeing a new man … for the past week.’”^[38]
53. [53]
    Dr Schramm made a number of comments about the defendant’s memory (with the caveat that the results were clearly usurped by the more formal cognitive tests administered previously).  Dr Schramm said that “[a]lthough able to attend and concentrate reasonably well during the interview, formal tests of those functions were less than perfect, with a forward digit span of only five, backward span of only three, and having some difficulty in registering a seven item name and address list.”^[39]  Dr Schramm added that although the defendant could register a three item list with no difficulty and recall that whole list three minutes later, he had difficulty registering a seven item list and could only remember three of those items three minutes later.
54. [54]
    As to the defendant’s fitness for trial, Dr Schramm opines that he “knew he was charged with stalking”, understood “the need to plea, and used the terms guilty and not guilty appropriately” and “spoke appropriately about his relationship with his solicitor.”^[40]  Dr Schramm was “impressed” by the defendant’s “excellent appreciation of most of the allegations made by [the complainant] such that he could point out whether he agreed or disagreed with them without [the doctor] having to take him to those pertinent points specifically.”^[41]  Further, Dr Schramm noted the defendant had been able to produce deleted text messages which supported his account of events.
55. [55]
    Ultimately, Dr Schramm concurred with Dr Andrews that the defendant “would find participation in court processes a challenge, but disagree[d] that this render[ed] him completely unfit for trial.”^[42]  Dr Schramm opined that it was not at all unlikely that the defendant would become distraught and be “briefly unable to follow what [was] going on in Court”, but, with “enough patience and time, he can be calmed to the point where he can participate.”^[43]  Dr Schramm considered the defendant’s difficulty in short-term recall could be overcome by taking him to issues point-by-point.
56. [56]
    In evidence, Dr Schramm opined that the defendant “presented … in a manner not inconsistent with an Autistic Spectrum Disorder”, but with the caveats that he was not “an expert in that condition” and his conclusion was partially based on the advice of a paediatrician.^[44]  Like Dr Douglas, Dr Schramm acknowledged that perhaps, looking at the raw cut-off scores, the defendant “does not reach the [DSM-V] criteria [for intellectual impairment]… but, putting together with story of his function, the way that he presented … he seemed a man who had significant cognitive impairment, and that was enough [for the doctor] to suggest that he had an intellectual impairment.”
57. [57]
    Dr Schramm did not consider the dispute of fact a product of the defendant’s natural mental infirmity, as “he was able to tell [the doctor’] specific examples that are disputes of real facts of real things that he said didn’t happen or did happen, in contrast to the complainant’s report.”^[45]  Dr Schramm opined the defendant was fit for trial. Dr Schramm found it:

“very difficult to disagree with anything that Dr Douglas had said, that [the defendant] is going to be a great challenge and require great allowances made, but if [the Court] look[s] at whether he [has] got an ability to understand that he [is] charged with something, that he needs to answer to that, that he can give his version of that, that he can – is even capable of some kind of tactical response, not a sophisticated one.  [The defendant] informed me that off his own bat he had been able to find and access text messages which he knew contrasted with the complainant’s report.  The defendant had also apparently – … spoke[n] to … his landlord that confirmed they had access to CCTV to show that this lady had been to his house in the period after she said she was telling him go away and leave me alone.  So that took a long time to get that story.  It took a lot of distress, and it took a lot of clarifying and going back and forth.  As Dr Douglas said and Dr Andrews said, timelines were very difficult to establish.  It was painstaking.  It was difficult.  But it was possible to get [the defendant’s] account to answer to that.”^[46]

58. [58]
    Dr Schramm further opined the defendant would be sufficiently able to follow the course of a trial in order to be able to receive a fair trial, but: “not without great allowances.  There’d have to be lots of pauses and lots of explanations.  But yes, with allowances.”^[47]  Dr Schramm recommended silo-ing particular areas of evidence, ensuring questions were simple, and having regular breaks.

Submissions

59. [59]
    Counsel for the defendant submitted that the issue of the defendant’s fitness for trial was “not a simple question.”^[48]  Part of the difficulty related to what measures the trial Court would adopt, and whether the prosecution and complainant would accept such measures.  Counsel expressed doubt as to the Court’s legal power to adopt such measures without consent. Counsel also submitted there would be practical difficulties in implementing any modifications.  Of particular concern were the proposals in relation to the “silo-ing” of information during the trial, and the defendant’s capacity to recall and respond to information.  Counsel also raised a concern as to the impact of any modifications on the jury, submitting that such modifications may lead to the jury prejudicially and impermissibly relying on propensity reasoning.
60. [60]
    Counsel for the DPP submitted that the defendant’s capacity to provide his account of the facts in his interview with police officers and reporting doctors evidenced his ability to understand the allegations made against him and give a reasonable account in response to those allegations.  Whilst the defendant faced difficulties processing and retaining information, especially that which is presented verbally and over an extended period, and also in expressing information, those difficulties could be adequately addressed by modifications to the usual Court processes.  Those modification include that the complainant’s evidence be immediately transcribed, that the transcript be provided to the defendant’s lawyer, and that the defendant have time to review the transcripts with his lawyer.   The Court has the power to control its own processes, and could make such modifications, with or without the consent of the parties.
61. [61]
    Counsel for the DMH submitted that the defendant was fit for trial.  The Court had the power to regulate its own proceedings so as to ensure a fair trial for both the defendant and the Crown.  The proposed modifications would address any difficulties the defendant had in following and participating in the trial.
62. [62]
    Counsel for the Director of Forensic Disability (DFD) characterised the Director’s position as being “basically the same”^[49] as that of the DPP and DMH. 

Assisting psychiatrists

63. [63]
    Dr Reddan advised that the experts had not laid a foundation for the conclusion that the defendant has Autistic Spectrum Disorder.  Dr Reddan’s understanding of Dr Schramm’s evidence was that he was prepared to acknowledge that the defendant does not, or at least may not, have that disorder.  However, Dr Douglas went further than that, and Dr Andrews admitted she accepted the diagnosis on the basis it had been made before, rather than that she actually had evidence for it.
64. [64]
    Dr Reddan advised that when the defendant saw Dr Schramm:

“he went with a clear or at least some view about the relevant dates… they are very relevant to the charge of stalking, because the charge is that he was unlawfully stalking [the complainant] between the 16th of March 2014 and the 4th of April 2014.  Clearly, [the defendant] understood the significance of that, because he went to some effort when he went to see Dr Schramm in disputing the dates of when the relationship ended.  [The defendant] even took along with him what he perceived to be evidence .... it was rational material that he went to some … effort to obtain and shows a clear understanding of the significance of those dates.”^[50]

65. [65]
    Dr Reddan advised that not only was this “a rational dispute of facts, but it suggests that [the defendant’s] understanding of the material … is somewhat better than perhaps the experts really took note of.”  Moreover, after police officers spoke with the defendant, he did not contact the complainant again.  Dr Reddan considered that evidence of his understanding of the situation, and his capacity to conform his behaviour to the law.
66. [66]
    In relation to the defendant’s fitness for trial, Dr Reddan advised “the experts’ evidence points to a fitness for trial with assistance.”  The defendant had the capacity to endure a trial without significant adverse consequences to his mental state.  The defendant “will be upset, worried, nervous, but those are normal reactions… virtually everyone finds a trial stressful.  [The defendant] won't be unusual in that way.”^[51]
67. [67]
    Dr Sundin advised that, having regard to all of the written and verbal material, she was not satisfied the defendant had Autism Spectrum Disorder.  Dr Sundin was particularly persuaded by Dr Douglas’ report and evidence.  Dr Sundin accepted only the defendant’s verbally-based intellectual skills reflect impaired functioning, and this is due to a speech and language disorder, not an intellectual or cognitive insufficiency.   Further, there is little evidence for specific impairment in the defendant’s capacity to read or understand the spoken word.  The defendant’s ability to abstractly reason and to be mentally flexible is quite unimpaired.
68. [68]
    In terms of the defendant’s fitness for trial, Dr Sundin advised he will require assistance in terms of access to written material in order to participate in the trial and in order to process evidence.  Dr Sundin recommended the trial Judge take into account the suggestions made by Dr Douglas and counsel for the Director of Public Prosecutions.  Dr Sundin noted that while the defendant “will, like any other person, find a trial distressing … he would not suffer any major unwarranted severe impact upon his mental health by the process of enduring the trial.”^[52]  Accordingly, Dr Sundin advised the matter should proceed according to law.

Discussion

Fitness for trial

69. [69]
    The Mental Health Act 2000 (Qld) defines “fit for trial” as “fit to plead at the person’s trial and to instruct counsel and to endure the person’s trial, with serious adverse consequences to the person’s mental condition unlikely”.  In Berg v Director of Public Prosecutions (Qld), the Court of Appeal accepted that “fit for trial” encompasses three separate criteria: fitness to plead, fitness to instruct counsel, and fitness to endure the trial.  Each of those three criteria are “equally indispensable”.^[53] 
70. [70]
    Having considered all of the evidence, including the detailed opinions expressed by the psychologists and Dr Schramm, I am satisfied the defendant is fit for trial in respect of the alleged offence.  I found the evidence of Dr Schramm and Dr Douglas particularly persuasive.  Each gave careful consideration to the defendant’s many difficulties with language, hearing and comprehension in the context of his cognitive and other difficulties.  Both impressed me as having specifically considered those matters in the context of the abilities necessary for the defendant to be fit for trial.
71. [71]
    Dr Schramm’s evidence as to the defendant’s ability, without prompting, to respond by way of challenging the complaint’s account was particularly compelling, having regard to the lengthy period of the interview and the stress associated with that process. 
72. [72]
    In contrast, I did not find Dr Andrews’ evidence persuasive.  Dr Andrews’ opinion that the defendant had autism spectrum disorder was plainly important to her conclusion.  Dr Andrews’ acceptance of this condition appeared to be primarily based on an acceptance of what was said to be a previous diagnosis, more than the findings on testing and the clinical presentation. 
73. [73]
    Dr Andrews’ views also seemed to have been significantly informed by what she saw as the difficult relationship between the defendant and his then solicitor.  However, Dr Andrews accepted that those issues could be resolved by the appointment of different solicitors.  Dr Andrews also ultimately accepted the defendant may be able to stand trial with the provision of additional time and further explanations. 

‘Fitness to plead’

74. [74]
    In Berg^[54] the Court reiterated that to be fit to plead, the defendant must satisfy the six criteria outlined in R v Presser,^[55] which are the abilities to:

1. understand the nature of the charge;

2. plead to the charge and exercise the right of challenge;

3. understand the nature of the proceedings;

4. follow the course of the proceedings;

5. understand the substantial effect of any evidence which may be given in support of the prosecution; and

6. make a defence or answer the charge.

75. [75]
    I am satisfied the defendant is capable of understanding the nature of the charge of unlawful stalking made against him.  The defendant’s behaviour in his interviews with police officers and Dr Andrews evidences this understanding.  For instance, in the defendant’s interview with police on 8 April 2014, the police officers explained to him that a complaint of unlawful stalking had been made against him.^[56]  The defendant did not request any clarification of the offence of unlawful stalking.  Instead, the defendant sought information as to the facts the complainant had provided to the police, and gave an account of the facts which was not only relevant to the charge but contrary to that which had been provided by the complainant.  This is indicative of his understanding of the nature of the charge against him. 
76. [76]
    Further, in his interviews with the police, reporting psychologists and reporting psychiatrists, and during the hearing of this reference, the defendant has experienced visible emotional and psychological distress as a consequence of the charge.  I am satisfied that distress was consistent with the defendant being upset by the characterisation of his behaviour as stalking.  I do not accept Dr Andrews’ opinion that the defendant “understands the charge of stalking” but “cannot apply this to his own behaviour”; I am satisfied the defendant understands the charge of stalking but disputes the characterisation of his behaviour as stalking.
77. [77]
    I am also satisfied the defendant has the capacity to enter a plea to the charge and exercise his right to challenge potential jurors.  That finding is consistent with Dr Andrews’ and Dr Douglas’ advice that the defendant understands the concepts of guilt and innocence and entering a plea.  The defendant is also capable of understanding the nature of the proceedings.
78. [78]
    I am also satisfied that, with modifications, the defendant is capable of following the proceedings.  I accept Dr Andrews’ opinion that the defendant’s capacity to follow the court of proceedings is likely to be impaired, because of his difficulty in receiving and processing information which is abstract, complicated or longer than a couple of sentences in length.  However, Dr Andrews recognised that if the Court were to provide the defendant with additional time and further explanations, “he may be able to stand trial … it depends on what sort of allowances the Court can make.”^[57]  I am satisfied the trial process can be modified in such a way that the defendant will be capable of following the proceedings.  The Court’s inherent power to control its own proceeding will allow such modification.
79. [79]
    My conclusion in this respect is underpinned by the defendant’s capacity to concentrate during, and subsequently recall, his extended interviews with police officers, reporting psychologists and reporting psychiatrists.  The defendant’s interview with police officers on 8 April 2014 is of particular relevance; the police officers were able to simplify and repeat information such that the defendant understood it and was capable of responding.  Those modifications will be at the discretion of the trial judge, but may include shorter Court sitting periods, longer Court adjournment periods, more frequent Court adjournment periods, a restriction on complicated or confusing cross-examination techniques, and the repeated presentation of the same material, and reducing questions to writing and allowing time for the defendant to consider and respond to those questions.
80. [80]
    I am also satisfied the defendant has the capacity to understand the substantial effect of any evidence which may be given in support of the prosecution.  Dr Andrews lists several factors which are likely to impair the defendant’s capacity in this respect, including his cognitive deficits, his difficulty in applying information to himself (although as I have indicated, I consider some of this apparent difficulty reflects his genuine dispute of the characterisation of his behaviour as stalking) and his poor relationship with his solicitor.  However, the defendant’s responses to police officers in his interview on 8 April 2014 indicates he was capable of understanding the evidence the complainant had given against him and its effect. The behaviour referred to below is also relevant to his capacity in relation to this criteria. 
81. [81]
    Finally, I am satisfied the defendant has the capacity to make a defence or answer the charge. The defendant has provided his account of the facts.  It is contrary to that provided by the complainant.  The defendant has maintained his innocence in relation to the charge, in all of his interviews with police, the reporting psychologists and Dr Schramm. The consistency of, if not the clarity in, the accounts the defendant has provided so far is relevant when considering his capacity to make a defence or answer the charge, as is his maintenance of his innocence.
82. [82]
    For instance, in his interview with police on 8 April 2014, the defendant was able to articulate how he had commenced his relationship with the complainant; made reference to the fact that their relationship had, as recently as January or February 2014, been sufficiently serious that they were considering purchasing engagement rings;^[58] and their relationship had always been of an on-again, off-again nature, with her ending the relationship and him convincing her they should reconcile.^[59]  In that same interview with police, the defendant commented that he found the complainant’s messages ending their relationship confusing; for instance, she said she wanted to be friends with him, but did not want to see him.^[60] 
83. [83]
    Although the defendant had some difficulty in articulating which events had occurred on which days and dates, he was able to challenge the complainant’s account of the facts generally, and was also able to dispute some specific factual allegations.^[61]  Of particular relevance, the defendant took a print-out of text messages between him and the complainant to his interview with Dr Schramm on 19 March 2015, and used those text messages to dispute the complainant’s account of the facts and substantiate his own.  These behaviours are not consistent with his statement to Dr Andrews that he would not advise his solicitor if information stated in Court was incorrect.  As Dr Andrews recognised, the defendant made those comments when he had a different solicitor from that which he has now or may have for any trial.^[62]
84. [84]
    The defendant has undeniable difficulties in retaining information and expressing himself.  I do not doubt that those difficulties will be compounded in a Courtroom, and that he will need the assistance of medical and legal professionals, as well as that of his family.  However, all of the defendant’s previous behaviours satisfy me that he will be capable, with such assistance, of making a defence and answering the charge.
85. [85]
    The defendant satisfies each of the Presser criteria. 

Fitness to instruct counsel

86. [86]
    As Chesterman J put it, an “exegesis of the concept ‘fitness to instruct counsel’ is provided by the judgment of Smith J in Presser”.^[63]  In Presser, Smith J held that ‘an accused ‘needs to be able to follow the course of proceedings so as to understand what is going on in Court in a general sense, though he need not, of course, understand the purpose of all the various court formalities.  He needs to be able to understand … the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge.’^[64]  Insofar as those aspects of the criteria are the same as the third, fourth, fifth and sixth Presser criteria, my reasoning and conclusions above are applicable to those aspects.
87. [87]
    Smith J continued that “[w]here he has counsel, he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the Court what it is.  He need not, of course, be conversant with Court procedure and he need not have the mental capacity to have an able defence; but he must … have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of his facts known to the Court and to his counsel.”^[65]
88. [88]
    As Chesterman J observed, the “terms of this exposition reveal a concern that an accused person must be able to understand, at least in general terms, the nature of his plight and the case brought against him.  That is, the accused must appreciate what is meant by being on trial, and as well he must be capable of understanding the substance of the charge he faces.”^[66]
89. [89]
    As the defendant is not self-represented and has publicly-funded legal representation, the issue of whether or not a defendant must have legal counsel in order to be fit to instruct counsel (as considered in Berg v Director of Public Prosecutions (Qld))^[67] is not relevant.  However, it is relevant that the defendant reported to Dr Andrews that his lawyer will assist him less than other people in similar circumstances.  The defendant obviously perceived his then lawyer as dismissing information he provides, and he would not advise his solicitor of any incorrect information stated in Court.  However, the defendant has had a change in his legal representation.  Further, for the reasons I have articulated above, I am satisfied the defendant understands the charge against him, understands generally what a trial involves, and can provide his account of the facts to his counsel and to the Court.

Fitness to endure the trial

90. [90]
    Given the distress that this hearing caused to the defendant, it seems likely any criminal trial would be upsetting to him.  However, there is not any psychiatric evidence to support a conclusion that the defendant is not fit to endure the trial, or that any trial would have a significant adverse impact on his mental health.  To the contrary, the defendant has shown an ability to withstand hours of interviews and this hearing.  As Dr Sundin advised, the stress of a trial, whilst great, would not cause the defendant undue or irreparable hardship.  I am satisfied the defendant is fit to endure the trial.

Orders

91. [91]
    I order:

    1. At the time of the alleged offence, the subject of the reference, the defendant was not of unsound mind as defined in the schedule to the Mental Health Act 2000 (Qld).
    2. The defendant is fit for trial.
    3. The proceedings against the defendant are to continue according to law.
    4. Copies of the reports and of the transcript are to be provided to the parties in the criminal proceedings.