Re BLK[2016] QMHC 7

MENTAL HEALTH COURT

1. [1]
   BODDICE J:  By reference, filed 4 September 2014, Legal Aid Queensland referred to this Court the mental condition of BLK at the time of alleged offences of indecent treatment of a child under 16 years of age (with circumstances of aggravation, namely that the child was under 12 years and a lineal descendent of the defendant), between 6 June 2013 and 29 July 2013, and distributing child exploitation material, between 6 June 2013 and 17 August 2013. 
2. [2]
   There is no dispute the defendant was not of unsound mind at the time of the alleged offences.  At issue is whether as a consequence of the defendant’s intellectual impairment she is permanently unfit for trial. 

Background

3. [3]
   The defendant was born on 10 March 1985.  She is a single woman.  She has received a disability support pension since her teenage years.  She suffers from a marked intellectual impairment with significant cognitive deficits. 
4. [4]
   The defendant does not have a past psychiatric history of any significance.  She has previously been prescribed anti-depressants and had on one occasion been admitted to a mental health unit, apparently as a consequence of suicidal thoughts.  She has previously been diagnosed with cerebral palsy and epilepsy, as well as depression and anxiety. 

Alleged offences

5. [5]
   The victim in the alleged offences is the defendant’s 8 year old daughter.  It is alleged the defendant, at the request of her ex-partner, pulled down her daughter’s underpants and took a photo of her child’s vagina on her mobile phone.  She then allegedly forwarded that photograph to her ex-partner. 
6. [6]
   The defendant gave an account to police about her actions.  Relevantly, she said she complied with the request of her ex-partner because of fear she would be assaulted by him.  There is no previous record of reported domestic violence incidents involving the defendant and her ex-partner. 

Reporting psychiatrists

7. [7]
   Dr Schramm interviewed the defendant on 7 July 2014.  He opined that the defendant suffers from a mild to moderate intellectual disability with significant deficits in reasoning, judgment, problem solving and abstract thinking.  He noted she had a past dysfunctional life with a history of physical and sexual abuse at the hands of others who had taken advantage of her disabilities. 
8. [8]
   Dr Schramm opined that having regard to what was alleged to be a highly abusive relationship with her ex-partner, it is likely the defendant at the time of the alleged offences was suffering marked problems in her mood consistent with a diagnosis of “adjustment disorder with depressed and anxious mood”.  However, there was no evidence of any deprivation of capacity by reason of her natural mental infirmity or any mental illness. 
9. [9]
   Dr Schramm accepted the defendant’s intellectual impairment would have impaired her capacity to fully appreciate the impact of her alleged behaviour.  However, she retained a reasonable appreciation that the alleged offences were not only illegal but wrong.  Similarly, whilst her intellectual and emotional immaturity would have impaired the defendant’s capacity to control, it would not have deprived her of that capacity.  Accordingly, Dr Schramm did not support a finding of unsound mind. 
10. [10]
    Dr Schramm opined that the defendant’s intellectual impairment was of such a degree that she should be seen as permanently unfit for trial.  Whilst she may be able to convey her version of events, with difficulty, she did not have the intellectual capacity to adequately follow and provide sensible instructions.  She would not be able to understand what was going on in the courtroom, beyond a simple appreciation.  She also did not have sufficient intellectual ability to understand the weight of the evidence against her, even though she may understand the allegations. 
11. [11]
    Dr Schramm maintained these opinions in evidence.  He opined there was a very high risk that suggestibility or compliance would affect her answers at any trial.  There was also a risk she would not understand the questions.  These risks could not be greatly ameliorate by adjustments to the court regime.  There is also a risk that the subtleties of her cognitive impairments would mean those who were representing her and others in the Court would not appreciate she was unable to give a coherent account of the reasons for her actions. 
12. [12]
    Dr Schramm expanded on this consideration in evidence:

“… she certainly wouldn’t have any reliable ability to be able to sit in a Court and hold and keep in her mind all of the individual facets and factors of the case against her, to put them together, to put weight onto them, to congeal them and then to give an answer.  She can answer to, say, did she do something?  Didn’t she do something?  Although then we’ve talked about that even that that might not be reliable.  But, overall, to conduct and to calculate in her mind how she might answer to the charges, how she might defend these charges, I think that is a great difficulty – is great difficulty, and that’s irrespective of whether or not she’s a – should be seen as a reliable or unreliable witness.”^[1]

13. [13]
    Dr Simpson assessed the defendant on 16 February 2015.  Dr Simpson had Dr Schramm’s report at the time of that assessment.  Dr Simpson noted a past history of significant epilepsy and cerebral palsy.  However, the defendant denied any past psychiatric history and any past history of self harm or suicidal ideas.  She also denied having any past admissions to mental health units.  She denied using recreational drugs or alcohol. 
14. [14]
    Dr Simpson performed some limited cognitive testing on the defendant.  That testing revealed some deficits in memory.  However, the defendant was able to give Dr Simpson an account of the alleged offences and of the circumstances of her involvement in the alleged offences. 
15. [15]
    Dr Simpson opined that the defendant has an “intellectual disability secondary to severe epilepsy” in childhood.  The impairment was consistent with a mild to moderate intellectual disability.  There was no evidence of any mental illness.  Dr Simpson opined that there was no evidence that at the time of the alleged offences the defendant was as a consequence of her natural mental infirmity or any mental illness deprived of any of the requisite capacities.  Accordingly, Dr Simpson did not support a finding of unsound mind. 
16. [16]
    Dr Simpson opined that the defendant’s cognitive deficits were not such that she was unable to understand the nature of the charges or unable to enter a plea.  The defendant was capable of instructing her legal representatives, had the capacity to challenge the evidence presented in Court, although she may need assistance and explanation, and an appearance in Court, whilst distressing, should not be considered a reason to find her unfit for trial. 
17. [17]
    Dr Simpson revised those opinions in evidence.  Dr Simpson accepted the defendant would have difficulty processing and retaining information.  The defendant would also find following the evidence somewhat challenging and this process would require frequent pauses and explanation. 
18. [18]
    Dr Simpson opined that, having regard to the more recent testing, the following were suspect: the defendant’s capacity to understand information being presented to the Court, to retain that information (due to her poor working memory and processing speed) and to sit through Court and consider what issues are of greater or lesser importance.^[2]  She was also at risk of providing false testimony due to her suggestibility and her willingness to please.  There was a risk the defendant would confabulate to fill in perceived gaps. 
19. [19]
    Dr Simpson opined that having suitable breaks would not necessarily avoid the problem of the provision of false testimony.  That risk would remain regardless of the processes adopted by the Court.  Frequent breaks may in fact have a negative effect in the defendant’s case.  The defendant has a limited capacity to sit through information and decide how much is of greater or lesser importance.  Dr Simpson considered in those circumstances fitness for trial to be borderline and probably favoured unfitness, particularly having regard to the defendant’s poor working memory and poor processing speed. 

Reporting psychologist

20. [20]
    Dr Hatzipetrou undertook a psychological assessment of the defendant on 26 June 2015.  In his opinion, her general cognitive ability was in the extremely low range when compared to her peers.  She has deficits in short-term memory, attention and concentration which were likely to significantly impact upon learning abilities and scholastic achievement.  Dr Hatzipetrou also noted the defendant had a past history of emotional vulnerabilities and ineffective coping mechanisms against a background of physical and sexual abuse. 
21. [21]
    In Dr Hatzipetrou’s opinion, the defendant’s scores on understanding, reasoning and appreciation domains fell within the clinically significant impairment range.  Whilst the defendant had an understanding of legal rights and the roles of key personnel, the defendant would experience difficulties contesting incriminating evidence and her capacity to provide instructions to her legal representatives was likely to be impaired.  The defendant would not appreciate the seriousness of her actions or potential consequences.  The defendant would also be at considerable risk of providing erroneous testimony or making impulsive comments. 
22. [22]
    Dr Hatzipetrou further opined that whilst many of the defendant’s difficulties could be addressed by amendments to Court processes, the defendant did not have the ability to participate in legal proceedings, reliably instruct her counsel or identify or challenge incriminating evidence.  She was unlikely to reveal the problems with comprehension and learning and would have difficulty recalling information in order to make informed decisions.  Accordingly, Dr Hatzipetrou opined that the defendant was unfit for trial. 
23. [23]
    Dr Hatzipetrou maintained this opinion in evidence.  Whilst he considered the defendant could follow a trial, the emotional aspects were likely to make her more anxious, further interfering with her information processing and decision making.  He would not have confidence, even allowing for those adjustments, that the responses given were not as a consequence of impulsiveness as opposed to a consideration of the material.  There was an increased risk of false evidence due to her susceptibility and wish to appease others. 
24. [24]
    Dr Hatzipetrou noted particular concern in relation to the defendant’s working memory and information processing abilities:

“…  this information is oral, so it’s not written down because she can’t read.  So it’s oral, so she has to listen to it.  And we’re looking at a 0.4 percentile range.  And she’s got to then encode that information, store it, and then use that later on.  And if it’s processing slow or it’s not being encoded, then it’s not being stored.  And so when you ask the same question, then if she’s understood half of that question or picked up some elements, she can inadvertently provide a false testimony because she makes an assumption or can be confabulating to put gaps in the memory.  It’s like – and then if you layer that with the issues around verbal comprehension, so she’s not understanding words, she may well pick up some of the words and make her best guess in what’s being asked.  And this was a concern when we’re looking at her fitness for trial.  It was – it was not just about her ability to recall the event; it was about, you know, sitting in court, you know, listening to all the information that’s taken on, and then being able to make an understanding about also the seriousness of the situations, and then use that information to instruct their lawyer.”^[3]

25. [25]
    Dr Hatzipetrou’s major concern was the defendant’s ability to mount a defence at trial.  Whilst the defendant had a capacity to give an account of the incident, there was a real risk that account would be erroneous due to memory and processing difficulties.  Those difficulties were compounded by anxiety.  The concern was not just susceptibility but incomplete and potential confabulation filling in the gaps so as to be able to remember certain aspects.^[4]  Dr Hatzipetrou doubted the defendant would be able to attend fully throughout the course of the proceedings having regard to her intellectual disabilities. 

Assisting psychiatrists

26. [26]
    Dr Harden advised that the defendant presented as a clinically and complex matter.  Whilst all three reporting psychiatrists considered the question of fitness for trial to be borderline, Dr Harden advised that Dr Hatzipetrou’s evidence was particularly useful and supported the view that, on balance, the defendant was permanently unfit for trial. 
27. [27]
    Dr Phillipson agreed with Dr Harden’s advice.  Dr Phillipson noted that Dr Simpson, in evidence, accepted that the question of fitness for trial was borderline and favoured unfitness, a view consistent with the opinions of Dr Hatzipetrou and Dr Schramm. 

Statutory test

28. [28]
    The term “fit for trial” is defined in the Schedule to the Mental Health Act 2000 (Qld).  It means “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”.  Whilst that definition identifies three individual criteria, fit to plead, fit to instruct counsel and fit to endure the person’s trial, it is permissible, in construing these terms to have reference to the common law.^[5]
29. [29]
    The common law test was enunciated in R v Presser:^[6]

“The question, I consider, is whether the accused, because of mental defect, fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him.  He needs, I think, to be able to understand what it is that he is charged with.  He needs to be able to plead to the charge and to exercise his right of challenge.  He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with.  He needs to be able to follow the course of the 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, I think, 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.  Where 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 make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any.”

30. [30]
    The concept of fitness to plead and be tried was emphasised by the High Court in Kesavarajah v The Queen.^[7] 

Discussion

31. [31]
    There is no doubt the defendant suffers from significant intellectual impairments.  As a consequence she has significant cognitive deficits including in memory retention and information processing.  These deficits are particularly relevant to the defendant’s ability to make out her defence to the alleged offences. 
32. [32]
    Of particular importance in this case is the defendant’s ability to make out any defence.  Whilst the Director of Public Prosecutions correctly observed that the test of fitness for trial does not involve a consideration of the reliability of a defendant’s evidence, it does require a consideration of the defendant’s ability to make out any defence.  The issue is one of capacity to make out a defence, not the quality of any defence that can be made out. 
33. [33]
    As was observed in Presser, it may include the ability to give evidence if need be, although the giving of evidence and the ability to make out any defence could never be a determining factor as a defendant is not obliged to give evidence at a criminal trial.  On this aspect I found Dr Hatzipetrou’s evidence highly persuasive. 
34. [34]
    Dr Hatzipetrou explained why the particular deficits in information processing and memory retention would prevent the defendant from having the ability to make out a defence at trial.  In short, these deficits rendered it difficult for the defendant to be able to retain the necessary information as the evidence unfolded in order to instruct counsel.  The provision of regular breaks, in the defendant’s case would likely impede rather than assist the defendant’s ability to undertake this task. 
35. [35]
    In addition there was a significant risk the defendant, due to susceptibility and a need to please, would confabulate in any account given by her.  The risk of confabulation would not be confined to the giving of evidence.  It could also arise in the giving of instructions to counsel.
36. [36]
    I accept that the defendant’s intellectual impairments, particularly in the areas of information processing and memory retention, are such that the defendant is not able to make out a defence to the charges.  In coming to this conclusion I have had regard to the circumstances of the trial itself including the nature of the allegations and the likely issues regarding any explanation for her conduct, including the circumstances of the abusive relationship. 
37. [37]
    I am satisfied the defendant is unfit for trial.  I accept that unfitness is of a permanent nature.  This conclusion is consistent with the opinions of Dr Hatzipetrou and Dr Schramm and with the advice I have received from the assisting psychiatrists.  Dr Simpson in evidence also accepted the position was borderline and, if anything, favoured unfitness. 

Future management

38. [38]
    Having regard to the defendant’s vulnerabilities as a consequence of her intellectual impairment, I am satisfied there is a need for a forensic order.  This conclusion is consistent with the advice I received from Dr Phillipson.  I accept Dr Phillipson’s advice that a forensic order would be useful in protecting the defendant from various influences, particularly as her guardianship order had been revoked in July 2014. 

Orders

1. At the time of each of the alleged offences 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. In respect of each of the alleged offences, the defendant is unfit for trial, and that unfitness is of a permanent nature.
3. The defendant be detained, pursuant to a forensic order Mental Health Court – Disability to the Mackay Authorised Mental Health Service.
4. Limited community treatment be approved, at the discretion of the authorised psychiatrist, on the terms and conditions set out in the draft proffered by the Director of Mental Health.
5. Copies of the reports and of the transcript be provided to the parties, to the treating team, to the Mental Health Review Tribunal and to the Attorney-General.