Re Gibson[2017] QMHC 3

MENTAL HEALTH COURT

[1] This was a reference to the Mental Health Court in relation to James Wesley Gibson, born 20 October 1987. There are four offences before the Court. Mr Gibson seeks a defence of unsoundness of mind or a finding that he is unfit to stand trial.

The Alleged Offending

2. [2]
   On 11 March 2015, the defendant’s wallet was handed in to police.  It had been found on a train.  It contained a USB drive on which police found a number of movies and pictures which they categorised as child exploitation material.  This is the subject of a charge of possessing child exploitation material – 11 March 2015.
3. [3]
   On 1 April 2015, police attended Mr Gibson’s home and executed a search warrant.  They located handwritten stories on paedophilic themes.  Mr Gibson told the police that these stories were his; he wrote them.  This is the subject of one charge of making child exploitation material on an unknown date between 13 June 2014 and 2 April 2015.
4. [4]
   Mr Gibson was granted bail and failed to report as required.  He told police he had no-one to take him to report on 10 April and had no money to take himself to report.  He was arrested and charged with one count of breach of a bail condition on 10 April 2015.  He was remanded at Arthur Gorrie Correctional Centre. 
5. [5]
   While detained in Arthur Gorrie Correctional Centre Mr Gibson failed to comply with a Corrective Services officer’s direction, and spat in the direction of that officer, prompting the officer to activate a code yellow response for a non-compliant prisoner.  This behaviour is not the subject of any charge.  Responding officers arrived and when one of them was applying handcuffs to him, Mr Gibson turned his head and spat in that officer’s face: a charge of serious assault.

Offending History

[6] Between 2004 and 2007, Mr Gibson committed a variety of offences in South Australia, consisting mainly of property damage and trespass, but also including assault and threatening harm. In 2009 he was charged with possessing child pornography. In 2010 he was again charged with possessing child pornography (inter alia). He was convicted and given a wholly suspended sentence of imprisonment.

Psychiatric Reports and Evidence

[7] This matter came on for hearing on 7 February 2017. I had reports of Dr Kovacevic (22 September 2015, 25 October 2015 and 22 October 2016) and Dr Beech (31 July 2016 and 21 November 2016). Both of these psychiatrists gave evidence on 7 February 2017. In addition, I had a psychological assessment and report by Dr Douglas, psychologist (2 February 2016).

Diagnoses

8. [8]
   Mr Gibson told Dr Kovacevic that he had difficulties fitting in as a child.  He was confused, lonely and had learning difficulties at school.  He was bullied and had no close friends.  He left school after finishing Grade 9.  He gave a history of an interest in pornography from 2009 and told Dr Kovacevic that because he had Asperger’s disorder he could not help himself.  
9. [9]
   Dr Beech’s report of July 2016 records a similar childhood history to Dr Kovacevic.  Mr Gibson was sent to a detention centre at 16 years old following aggressive behaviour towards his mother.  Dr Beech also explores and records a longstanding interest in sex with children, from age 10; he diagnoses paedophilia.
10. [10]
    Dr Beech takes some time in his report to review the various assessments which have been made of Mr Gibson (12 between 1999 and 2013).  Dr Beech also had the report of Dr Douglas.  Dr Beech noted that an adult guardian had been appointed for Mr Gibson.
11. [11]
    Dr Kovacevic diagnosed Mr Gibson with autism.  Consistent with this he had delayed social development and deficits in empathy, in particular a limited capacity for understanding the feelings and reactions of other people.  He thought that deficit in particular had “an impact on the person’s capacity for social responsibility and for appreciating the consequences of his actions”.  
12. [12]
    As well, Mr Gibson had an acquired brain injury.  Mr Gibson told Dr Kovacevic that this was suffered when he put himself in the path of an oncoming train in March 2009, reportedly because he was distressed at being charged with pornography offences.  His criminal record does not reveal that there were any such charges at that time.  There are two charges of possessing child exploitation material dating from August 2009.    
13. [13]
    Dr Kovacevic thought that the brain injury had consequences of diminished impulse control, obsessional tendencies, sexual disinhibition and cognitive impairment superimposed on an already low intellect.  
14. [14]
    Mr Gibson gave a different account to Dr Beech of how he acquired his brain injury in 2009.  He told Dr Beech that he was bothered by paedophilic pornography which he was seeing on the internet and that he attempted suicide because he became depressed due to fear the police would find out about his internet activity and arrest him.  He told Dr Beech he got drunk and lay down on train tracks where he went to sleep and was then hit by a train.
15. [15]
    In his first report Dr Kovacevic refers to beliefs which Mr Gibson expressed and which Dr Kovacevic considered delusional.  Mr Gibson was receiving depot anti-psychotic medication by the time of his second interview with Dr Kovacevic.  There seems no doubt that Mr Gibson does suffer from some delusions and he has received a diagnosis of schizophrenia from others, although I am not certain that Dr Kovacevic endorses this rather than just reports it.  He certainly does not give any opinion that a delusional state is part of his thinking in relation to unsoundness of mind.  
16. [16]
    Dr Beech could detect no signs of psychotic disorder at the time he interviewed Mr Gibson, but he was medicated by then.  Dr Beech’s view was that in all likelihood there is an organic psychosis as a result of the brain injury.  Dr Beech notes that there was no evidence that Mr Gibson was suffering from a psychosis at the time of the offending and that seems correct on all the evidence I have.
17. [17]
    Dr Beech thought that Mr Gibson’s history was consistent with autism.  He thought that before the brain injury in 2009 he had low average intelligence with language deficits and some other difficulties.  He thought that after the acquired brain injury there were indications of deterioration in cognitive functioning, particularly around memory and executive functioning, and he traced this back through the previous reports he had on Mr Gibson, and the report from Dr Douglas.  
18. [18]
    Dr Beech thought Mr Gibson was suffering from a natural mental infirmity: autism and low intelligence, as well as frontal lobe syndrome from the acquired brain injury which he classed as a mental disease.  I accept that he was suffering from these conditions at the time of the offending and that they amount to natural mental infirmities and a mental disease.  

Unsoundness of Mind

[19] Section 27 of the Criminal Code 1899 (Qld) provides that a person is not criminally responsible if at the time of the alleged offence the person is in such a state of mental disease or natural mental infirmity so as to deprive them of one of three capacities. Only two of these capacities are relevant on the evidence here: the capacity to “know that the person ought not do the act” and the capacity “to control the person’s actions”. I will deal with each of those capacities in turn.

The Capacity to know he ought not do the Act: Evidence

20. [20]
    Dr Kovacevic’s reports dealt primarily with the charge of possessing child exploitation material.  He was formally instructed in relation to only this charge.  As the preparation for the hearing progressed he became aware of the other charges and he was examined about them in his evidence.
21. [21]
    Mr Gibson told Dr Kovacevic he knew it was illegal to carry a USB drive with child pornographic images on it.  He gave a history of sexual attraction to his sister from about age 10, which he had come to understand was inappropriate because “if she became pregnant then it would be called incest and the child would probably have something wrong with it”.  
22. [22]
    Mr Gibson told Dr Kovacevic that he would never touch a child sexually in real life because this would be wrong and illegal.  When asked for an explanation of that view, Mr Gibson “had difficulty identifying any negative consequences for the children victims”.  The only negative aspects of the behaviour he could identify were the risk of prosecution and incarceration, as well as the inconvenience associated with having a victim fall pregnant.  Dr Kovacevic thought there were “questions about his capacity to understand or appreciate the moral wrongfulness of his behaviours” and this was demonstrated by Mr Gibson’s inability to identify any reasons which made child pornography harmful to other people.  He therefore concluded that:

“I have concern about Mr Gibson’s capacity for moral reasoning and his ability to appreciate the moral wrongfulness of his actions.  In whatever way the ‘wrongfulness’ might be construed, the essential component of this concept must require a capacity to appreciate potentially distressing or damaging effects of the person’s actions on others.  The question is whether Mr Gibson can truly understand and authentically appreciate that his actions were morally wrong, as opposed to having a concrete understanding that his behaviours in relation to child pornography might provoke predictable and negative reactions from others.” (my underlining).

23. [23]
    Dr Kovacevic re-examined Mr Gibson in October 2016.  Mr Gibson re-stated his understanding that possessing and viewing child pornography was illegal.  When Dr Kovacevic pressed him further he said that even if there were no law prohibiting it, viewing child pornography would still be wrong.  In explanation Mr Gibson said that an under-age person does not have the experience or time to grow up.  When asked further what kind of harm might be done to a child he replied, “She might get pregnant and then go to the hospital and have a baby and then die from it”.  He added that even if the child did not die in those circumstances, children should not be exposed as it encouraged others to do the crime.  He attributed his understanding to a television program and his father speaking to him about the subject.  He told Dr Kovacevic he did not have this understanding when he was first convicted (he says wrongly 2011) and it appears, although it is not entirely clear, that he denied to Dr Kovacevic an understanding at the time he was arrested for the offences with which I am dealing.
24. [24]
    In his second report Dr Kovacevic said:

“Although I acknowledge that Mr Gibson probably understood the legal wrongfulness of his behaviour, the appropriate test is the test of subjective moral wrongfulness, in other words what is important is his own appreciation (or lack thereof) that the act is inherently morally wrong, not only the concrete understanding that the act is punishable by law or disapproved of by the social and political structures around him.  I believe that once this test is applied, there is a strong argument to support the claim that Mr Gibson was deprived of the capacity to appreciate that he ought not do the acts in question.” (my underlining).

25. [25]
    The examination of Dr Kovacevic in Court centred around these views.  I asked him what he meant by “moral wrongfulness” but he was unable to usefully explain, saying that he meant the ability of an individual to appreciate his actions were morally wrong, not just legally wrong (t 1-4).  He meant something “contrary to the standards of morality – accepted standards of morality” (t 1-5).  His views were perhaps tied in some way to religious thinking (t 1-12).  He thought that autism was “specifically related to the absence of development of a social conscience which was at the root of being able to reason in moral terms” (t 1-5).
26. [26]
    Dr Kovacevic agreed that Mr Gibson understood that what he did was against the law. He understood the law was applicable to him and that if he engaged in behaviours including possessing child exploitation material there would be legal consequences, including him being punished and imprisoned. He could bear those ideas in mind in deciding whether or not to engage in the behaviour of possessing child exploitation material (t 1-6). Dr Kovacevic acknowledged that Mr Gibson’s hiding his pornographic material (in the ceiling of the home where he received 24/7 supervision) indicated that he understood it was wrong from a legal perspective (t 1-14 and t 1-21).

27. [27]
    Dr Kovacevic said:

“Well, he certainly understands that it’s wrong from – from the legal perspective.  That it could result in arrest and criminal prosecution.  I think he is clear about that.  He’s been charged and convicted prior in relation to a very similar offence.  A number of people would have spoken to him about that kind of behaviour.  And I have not doubted he was actually aware of that.  The question that I’m – that I raised in my report was whether he had genuine understanding, genuine appreciation that this was an intrinsically wrong and immoral act.” (my underlining).

28. [28]
    Some of the difficulties inherent in his reasoning about morality emerged when the other charges were discussed.  For instance, Dr Kovacevic thought that Mr Gibson was of sound mind in relation to the charge of breaching bail.  Consistently with his expressed views, I asked him whether he thought Mr Gibson knew it was morally wrong to breach bail.  He balked at applying the same reasoning to this offence.  He did not see it as an offence “concerned with morality” (t 1-10-11).  In further discussion it emerged that his view of morality involved doing harm to others, a concept which was in his view applicable to the charge of possessing child exploitation material, but not to breaching a Court order, there being no victim in respect of the latter offence (t 1-12).  
29. [29]
    The conundrum was more acute in relation to the making of child exploitation material.  That charge relies on Mr Gibson having written out his own paedophilic stories which he hid.  Dr Kovacevic’s view is that he was of unsound mind in relation to this offence.  To reason as Dr Kovacevic does in respect of the possession of child exploitation charge, it would be necessary to test whether or not Mr Gibson knew the writing of stories was morally wrong.  That involves an assumption that the behaviour is morally wrong, and that was not something which Dr Kovacevic could say was necessarily the case.  He acknowledged that it was a victimless crime (t 1-14-15).  Dr Kovacevic balked at saying that the production of these stories was morally wrong in an objective sense, and balked at expressing his own personal opinion about it.  His personal opinion was that it was morally wrong but, as he said, “that doesn’t really count for anything” (t 1-14-16). 
30. [30]
    Dr Kovacevic acknowledged that Mr Gibson was able to explain to him (second report) and to Dr Beech that child pornographic material was wrong because it caused children to suffer (inter alia), but he rejected that this showed Mr Gibson really understood the behaviour was morally wrong.  He thought it was a typical statement of an autistic individual “parroting” things that he had been told but without being able to genuinely appreciate that the behaviour was wrong at a deeper level (t 1-14).
31. [31]
    On questioning from Dr Reddan (assisting psychiatrist), Dr Kovacevic conceded that he could not be 100 per cent certain that Mr Gibson was just “parroting”.  But, he reiterated his view that an individual with autism, whilst able to repeat things, would not have any deep appreciation of what they were saying – “when you get down to more detailed understanding of the wrongfulness, then there is an empty – empty page.”  He thought that Mr Gibson might mean what he was saying, but said that in investigating whether or not Mr Gibson was of unsound mind, he was looking for a “better and more profound understanding of the wrongfulness, because when it comes to his understanding the wrongfulness, repeatedly, he came back to the consequences for him” (t 1-20).  That is, Dr Kovacevic thought that Mr Gibson’s autism prevented him understanding the conduct was wrong because it created pain and suffering in other people.  This relates back to Dr Kovacevic’s view that something is immoral if it harms other people.

32. [32]
    Mr Gibson told Dr Beech that he knew what he was doing was against the law because his parents had told him.  He hid the USB in the ceiling and other places because he was scared that he would “be caught with the wrong thing again”.  Mr Gibson said he did not share the stories he wrote on the internet or ever buy images on the internet because that would attract police attention as the police searched on-line and tracked down people who did these things.
33. [33]
    Mr Gibson told Dr Beech that he wrote the paedophilic stories when he was stressed.  They aroused him.  His mother told him to get rid of them.  He did not think it was wrong to do it because it involved “only writing, only physical movements, only writing, not endangering anyone and can’t see the wrong in that.”  In contrast, he said that the material on the USB drive was worse because, “when you look up that stuff on the internet of children, that creates them to make more and more children suffering.”  Mr Gibson is now aware that it is illegal to write stories.  
34. [34]
    As to the breach of bail, he was aware that he had to report, but he forgot until about three o’clock in the afternoon, and then there were not enough buses to get to the police station on time.  Mr Gibson told Dr Beech he told his father and his father told him he would sort it out for him.  He was aware that he had reporting conditions and that breaching them would lead to arrest.  He disputed the details of the police version of the breach of bail on the QP9.  He then gave Dr Beech another story in which he said he called the Nambour police to see if he could negotiate a new reporting time.  He could not, but by then it was too late to go to the station.
35. [35]
    He gave Dr Beech a description of his behaviour at Arthur Gorrie.  He said that he spat at the officer because he was angry and was being picked on and the officer hurt him.  He said that he knew it was “a little bit wrong to spit at people, a bit germy, but not totally wrong”.  He says he now understands it was illegal but did not know it was illegal at the time.
36. [36]
    Mr Gibson told Dr Beech that he began looking at paedophilic pornography in 2010.  His father told him that he should look at adult pornography but he kept looking at child pornography and he put some of it onto a USB drive “to keep it stored somewhere, so that I had a collection”.  He told Dr Beech that he would type in specific search terms (he gave examples) and that he was looking for particular types of pornography.  When he found pictures of children he would masturbate.
37. [37]
    In relation to the possession charge and the production charge, Dr Beech’s view was that the natural mental infirmities and mental disease would have affected Mr Gibson’s ability to appreciate the wrongfulness of his behaviour but he did not believe that he was deprived of the capacity to know that it was wrong.  He said:

“At the interview he described his understanding of the wrongfulness in relatively cogent terms.  He is able to describe how he hid the USB.  He indicated that he knew it would have been problematic to purchase the material because the police would be seeking such purchases on-line.  He had a few years earlier been convicted of the possession of [child exploitation material].  He said that he did not understand that it was wrong to write the stories.  In my opinion, although he may not have been aware of the illegality of the writings, I do not think that he would have been deprived of the capacity to know it was illegal; his lack of awareness is shared by a number of people …”

38. [38]
    As to Mr Gibson’s thinking about the possession of child exploitation material Dr Beech said:

“I don’t think he’s deprived of the capacity to know that he was breaking the law.  And I can’t see that he was driven by any other urge except that he wanted to do what he wanted to do regardless of whether he knew he was breaking the law or not.” (t 1-26).

39. [39]
    Dr Beech said this about Dr Kovacevic’s approach:

“I appreciate Dr Kovacevic’s argument around moral capacity.  However, I do not agree with his premise that a person is deprived of the capacity to understand the wrongfulness of an action if he does not appreciate the effects it might have on others.  Notoriously, people who view [child exploitation material] often have a limited understanding of the wrongfulness of their behaviours, and its effects; indeed, treatment often focuses on this deficit in moral reasoning and empathy.  There was no psychotic process that drove Mr Gibson, or any delusional thinking, or any sense that he viewed the [child exploitation material] or produced it for any reason other than sexual gratification.  He may have had limited or distorted views around the wrongfulness, but I do not think he would have been deprived of the capacity to understand that it was wrong in a serious sense as it related to the law.  

Mr Gibson has described an urge to view [child exploitation material] and possibly a compulsion.  Again, this compulsive viewing is more a feature of paedophilia and its addictive element when it comes to internet material than, I believe, the stereotyped repetitive behaviours of [autistic spectrum disorder] or the perseverative behaviours of someone suffering an acquired brain injury.  Mr Gibson has been able to refrain from viewing [child exploitation material] in the past, but in common with many recidivists, he has started to view pornography on-line and from there lapsed back into viewing [child exploitation material].  I do not think he was deprived of the capacity to control his behaviour, and I would see it as a compulsive urge but not an irresistible one.”

40. [40]
    In his evidence Dr Beech expanded on his views:

“So absent – absent a psychotic illness, absent a delusion, I think going down moral understanding and development is a very nebulous and slippery slope and would incorporate a large proportion of the general population who would not have great moral development beyond knowing that if you do it you’re going to get into trouble.

… Kohler, … looked at moral development, moral reasoning in the general adult population … at some level it’s, ‘I shouldn't do these things because if I get caught I’ll be in trouble.  It’s against the law.’  Above that is, ‘I shouldn't do these things because it’s against the law and in civil society we should obey the law.’  And above that is, ‘I shouldn't do these things even if I can and it’s not illegal because I shouldn't do things that harm others.’  And even above that is, ‘I should do things and even give up some rights for the betterment of society.’ … Over 20, 25 per cent of the human population doesn’t do some things because they know if they get caught they’ll be in trouble.  So – and I think that occurs whether you’ve got an autism spectrum disorder, whether you’ve got an intellectual disability, or whether you’re just part of the normal human population.  …

…

…  You know, at one level, ‘If I do it, I’ll get caught and it’s against the law.’  That is – that is actually a moral decision. …  People who have autism spectrum disorder can be very egocentric, and so they may see that they don’t have to think about what other people believe and they just make their own decisions not to go along with that.  But they know they’re breaking the law, and they’re not doing it for any higher moral purpose as you might if you’d got a psychotic illness.” (t 1-25-26).

41. [41]
    In support of the idea that people who desist from criminal behaviour simply because they know they will get caught are making a moral decision, Dr Beech gave an example that in times of riots or great natural disaster: “large swathes of the population looting because they think they can get away with it and these are people who don’t normally break the law or get into trouble.”
42. [42]
    As to the breach of bail, Dr Beech considered that Mr Gibson simply forgot to report and then lacked the motivation to comply.  As to the serious assault, he thought that Mr Gibson acted out of anger rather than for any reason related to his natural mental infirmities.  He did not believe his account that he did not know it was seriously wrong to spit at someone.
43. [43]
    Dr Beech thought that Mr Gibson well understood that possession of child pornography material was wrong.  He said:

“Your Honour, as I understand it, he’s been nagged by his parents, if you like, since about 2004 about the wrongfulness of looking at this child exploitation material. … He’s been before the court since what 2007 to 2012 – well, 2009 – sorry [indistinct] 2010, maybe, and 2012 about child exploitation material. 

He was convicted of it and he was sentenced.  …  And then he has stopped and then he’s had arguments with his father.  I think he’s probably suffered some negative emotional experience and he has returned to it.  And when he’s done that, he’s done it covertly.  I think he knew it was wrong by then.”

44. [44]
    Counsel for Mr Gibson did not rely upon Dr Kovacevic’s opinion but accepted that in relation to the possession of child exploitation material Mr Gibson knew that the behaviour was wrong.  This of course does not determine the matter as it would if it were a matter between the parties.

Advice of the Assisting Psychiatrists

45. [45]
    My assisting psychiatrists advised me to accept the opinions of Dr Beech in both his reports and his evidence.  Dr Reddan commented on Dr Beech’s appreciation of Mr Gibson’s longitudinal development difficulties and his thoroughness in his evaluation of the case.  He took a practical approach in her opinion, as well as exploring the motivation for the offending and Mr Gibson’s sexual interests more deeply than did Dr Kovacevic.  
46. [46]
    Dr Reddan rejected the approach Dr Kovacevic took to assessing the capacity to know one ought not do an act.  She expressed the view that, “I’m not sure that this is terribly psychiatric … in some respects in terms of a philosophy rather than about psychiatric matters and about the law as it stands.”  She also thought that his opinions were speculative.
47. [47]
    Dr Varghese described Dr Beech’s reports and evidence as logical and coherent.  On the other hand, he described Dr Kovacevic’s approach as flawed:

“… because it’s basically raising as Dr Reddan suggests, a philosophical issue about the nature of morality and the nature of [indistinct] and muddies the water with that.  But it’s also, I think, philosophically flawed the notion that there is something called moral capacity that resides in the frontal lobe, and that, if that goes, your moral capacity goes.  I think it’s deeply flawed.  It seems to me moral capacity is a much more complex issue involving self – personality evolvement.”

The Capacity to know he ought not do the Act: Conclusions

48. [48]
    As to the breach of bail I think there is a dispute of fact which prevents me determining the question of soundness: s 268 Mental Health Act 2000.  
49. [49]
    The remaining charges require attention to the test to be applied in judging whether someone has the capacity to know that they ought not do an act.  I made some remarks about this in a case which will be referenced as [2015] QMHC 8 when it is able to be published.^[1]  I will repeat those remarks here.

50. [50]
    The words of s 27 of our Criminal Code come straight from M’Naghten (above):  “If the accused was conscious that the act was one which he ought not do, and if that act was at the same time contrary to the law of the land, he is punishable; …”.  In most cases if an accused person knows that their acts are against the law that will be sufficient to show that they knew they ought not do the act, for the law is the most important standard according to which citizens appreciate what is right and wrong, to use the language of Stapleton.  However, as acknowledged in the cases, for example the latter section of the extract from Stapleton at [53] above, mental disease or natural mental infirmity will sometimes be such that even if the defendant knows their act is against the law, they might still not understand that they ought not do the act.  The reference in Stapleton just mentioned uses the rather old-fashioned term “insane motives” when talking about this category of case.  I think it is similar to what Dr Beech is referring to at [39] and [40] above, ie., psychotic motives or delusions.  I do not think it is possible to rule out the idea that natural mental infirmity or a non-psychotic illness might produce a state in which a person understands that an act is against the law, but is unable to understand that the law applies to them, or for some other reason does not comprehend in a real sense that they ought not do the act.  That is, I would not say that this category of case must always involve an insane motive or a psychotic delusion.
51. [51]
    I think the evidence in this case very well exemplifies why the test must be as it is stated in cases all the way from M’Naghten to Stapleton.  Many things are the subject of moral consensus in our society; but many things are not.  Significant parts of the population do not subscribe to the view that some things prohibited by law are in any way intrinsically or morally wrong.  As the evidence of the two doctors in this case shows, there is not even any consensus as to what is moral or immoral behaviour.  The test for whether or not someone’s acts are punishable at law cannot, and does not, rest on such unclear foundations.
52. [52]
    Further, in my view this Court cannot look at the quality of people’s moral understandings.  A child who is old enough to be criminally responsible is bound to have a learned and relatively unsophisticated, and emotionally unsophisticated, understanding of wrongness, absent any question of illness.  People differ in the profundity of their understanding of wrongness and just about everything else in life.  This Court has no role in attempting to discover whether people profoundly understand that their acts are wrong or if they have a superficial understanding of it.  There will of course be cases where people who suffer from a natural mental infirmity have no real understanding that they ought not do any particular act.  
53. [53]
    In my view there is no doubt that Mr Gibson knew he ought not possess the child exploitation material on the USB stick.  He knew it was against the law and he understood that the law applied to him.  He could weigh this information in deciding how to behave.
54. [54]
    I accept he did not know that writing stories with paedophilic themes was illegal, and Dr Beech seems to accept he was telling the truth about this.^[6]  He told Dr Beech that he did not know it was wrong because it did not hurt anyone else, in contrast to the material on the USB stick^[7] It is not clear that he hid the stories as he hid the USB.^[8]  He told Dr Beech that he did not share these stories on the internet.  He apparently showed them to his mother who told him to get rid of them.  He had, as Dr Beech noted, many significant opportunities to learn that paedophilia was wrong.  No-one expressed a view about whether he was able to reason in an abstract way sufficiently to generalise and understand that writing the stories was wrong.  In fact the issues relating to the stories did not receive as much attention as they perhaps should have.  The two child exploitation charges were dealt with together somewhat, and according to considerations relevant to the possession charge not the production charge.  I am not actually persuaded on all the evidence that Mr Gibson knew he ought not write the stories.  Someone without his infirmities and brain injury would have understood it had they had his history.  If he did not, it was because of his infirmities and brain injury.  In these circumstances, I think the unsoundness defence is available to him.
55. [55]
    I am satisfied that Mr Gibson knew he ought not spit at the Correctional Services officer.  
56. [56]
    In relation to the offences of possession and assault, I do not consider that Mr Gibson was deprived of the capacity to know he ought not do the acts involved in the offending.

The Ability to Control his Actions

57. [57]
    Mr Gibson told Dr Kovacevic that his offending in 2010 involved the police finding USB drives in his possession which contained child pornography.  That is, very similar circumstances to the charge of possessing child exploitation material with which I am dealing.  Notwithstanding learning quickly that child pornography was illegal, and contemplating that, Mr Gibson told Dr Kovacevic that once he started looking at it he simply “could not stop” and that he had difficulty perceiving what was legal or not legal.  He said he looked at internet pornography (of various types) about 20 to 30 times a day.
58. [58]
    In his report Dr Kovacevic says that Mr Gibson dated the onset of his interest in child pornography to the period following his acquired brain injury and records that the phenomenon of becoming obsessed with pornography has been described in the literature as a not uncommon consequence of traumatic brain injury.  He then says:

“It can be argued in Mr Gibson’s case that a combination of the developmental disability, poor social skills, lack of sex education, low IQ, autism and an acquired brain injury brought about a condition of sexual disinhibition and diction to pornography, which are so compelling that Mr Gibson has little or no ability to control such urges.  It could therefore be postulated that as a result of the combined effects of natural mental infirmity and mental disease, Mr Gibson was deprived of the capacity to control his actions in relation to possessing child exploitation material.”

59. [59]
    Dr Beech thought that Mr Gibson’s interest in child pornography was not a result of his head injury in 2009 (t 1-31).  I think that seems right on the material before me, both Dr Kovacevic and Dr Beech elicited a history where the interest in child pornography considerably pre-dated the head injury.  That does not determine the matter, Dr Kovacevic was of the view that the head injury might have operated to deprive Mr Gibson of the capacity to control himself in respect of pornography.  But he did not express himself in confident terms about this.  The extract immediately above puts his view on the basis of argument and as to the capacity to control his behaviour, Dr Kovacevic said that that was something he “postulated” (t 1-7).  
60. [60]
    When asked if it was his opinion that at the time of the offending Mr Gibson could not control his actions he said, “Well, yes.  Yes.  Let’s say I am.” (t 1-7).  He referred to the fact that Mr Gibson told him he was accessing pornography 20 to 30 times a day, which he considered showed a considerable degree of disinhibition (t 1-13).  When crossexamined on the point he said that his opinion might equally be consistent with an impairment rather than a deprivation of the capacity to control his actions (t 1-13).  He continued to express himself in less than emphatic terms saying, “There might be a point on his dynamic spectrum of capacity to control where he may actually no longer have -- where he simply can’t help himself.”  
61. [61]
    Dr Kovacevic pointed to the fact that even when under supervision Mr Gibson still behaves inappropriately in public, for example yelling at females, as showing that he might have lacked the capacity to control himself at the time of this offending (t 1-8).  Dr Kovacevic spoke to Mr Gibson’s support worker and elicited that Mr Gibson continues to behave inappropriately in public – engaging in conversation with females and sometimes even putting his head out a car window to call out to women.  Dr Kovacevic describes his behaviour as coarse and persistent, sufficient to defeat a number of support workers who have given up caring for him.  
62. [62]
    As to the capacity to control his behaviour Dr Beech said:

“If the charges were related to him yelling out the car window at girls and making obscene comments I can see that might be the impulsive loss of control that some people with a brain injury have.  But this is, I think, very controlled behaviour.  He goes home.  He gets on a computer.  He puts in search terms.  He finds images.  He downloads them, puts them onto a USB, transfers them over, hides them in the ceiling.  This is very controlled behaviour.  Writing [indistinct] only I can’t see anything impulsive or loss of control in writing out the stories that he did.”

63. [63]
    I prefer the opinion of Dr Beech.  I think it is more reliably based in the known facts of the offending, and I think Dr Kovacevic was tentative in his views, in any case.
64. [64]
    My finding then is that Mr Gibson was not deprived of the capacity to control himself in relation to the two child exploitation offences.  He was not deprived of the capacity to control himself in relation to the assault, see Dr Beech’s opinion at [42] above.

Fitness for Trial

65. [65]
    Dr Kovacevic said in his reports that Mr Gibson had limited understanding of the charges he faces and of Court proceedings.  He thought he understood the nature of the charges against him, but that his understanding of his plea options was “rather rudimentary”.  Dr Kovacevic made enquiries as to the role of Court officials and possible outcomes of Court proceedings and did not receive any overwhelming assurance that Mr Gibson understood these things but records that “due to the shortage of time, the matter of his fitness to stand trial was not explored any further”.  He concluded Mr Gibson had diminished capacity to learn about Court proceedings and “his deficits in ability to mentalize (ie., understand the social norms and properly interpret thoughts and feelings of others) are expected to interfere with his understanding of the entire social purpose and the meaning of a criminal trial.”
66. [66]
    At his second interview, Dr Kovacevic found that Mr Gibson was undecided with regards to his choice of a plea.  He wondered about his chances of going back to prison and recited that his legal advice was that it was unlikely.  In those circumstances he had concluded, “I should probably plead guilty and hope for the best.”  He said that he appreciated that there was strong evidence against him and admitted he had no viable strategy as to how to defend himself in Court.

67. [67]
    During the second interview Dr Kovacevic noted that Mr Gibson was particularly annoyed by noises which distracted him and interrupted his thinking process.  This was to the extent that he sometimes rose and opened the door to the room in which the examination was taking place to see what was causing the noise.  He complained that Dr Kovacevic exhaled loudly. The support worker interviewed by Dr Kovacevic confirmed that Mr Gibson was extremely sensitive to noise.  Dr Kovacevic attributed these things to a hyper-sensitivity to external stimulus (with excessive and anomalous responses).
68. [68]
    He thought that Mr Gibson sometimes gave irrelevant comments, displayed impaired concentration and that towards the end of the interview (total length one hour 30 minutes) he became tired and began yawning.  Mr Gibson asked to terminate the interview early.  
69. [69]
    Dr Kovacevic refers to something called the MacArthur Competency Assessment tool for fitness to stand trial and reports that Mr Gibson only completed “about 50 per cent of the items”.  I do not know what this instrument is.  It is apparently American, as one matter which Mr Gibson failed to understand was the notion of a plea bargain.  The Presser criteria for assessing fitness for trial are well known, including I am sure to Dr Kovacevic.  It is not of assistance to the Court to have opinions based on other criteria.  Certainly not criteria from other countries with different legal systems.  Nor are considerations as to the “entire social purpose and meaning of a criminal trial” relevant to an assessment of fitness for trial.

70. [70]
    Dr Kovacevic elicited from Mr Gibson that he understood the role of a defence lawyer and a prosecutor, but thought he did not understand the role of a judge or jury.  Dr Kovacevic gives his opinion that Mr Gibson was unable to discuss the risks and benefits of different plea options, although I think that the information he elicited from Mr Gibson at [66] above, is inconsistent with that conclusion.  It is in my view relevant and sensible reasoning about his plea.
71. [71]
    Dr Kovacevic thought Mr Gibson was not fit to stand trial.  His full-scale IQ was somewhere between 66 and 74.  He had impoverished verbal comprehension skills and functioned “at the level of an eight year old”.  He was rigid in his thinking, had difficulty following instructions and some paranoid ideas.  His memory was in an extremely low range.  He had attention and concentration deficits.  He thought in those circumstances Mr Gibson would have very limited capacity to follow Court proceedings, understand, process and retain information presented to him in a verbal form, and adequately instruct his counsel.  He would be very stressed and anxious in the courtroom setting and overly sensitive to, and distractible by, external stimulus not limited to noise. 
72. [72]
    In his evidence Dr Kovacevic added that autistic individuals exhibited a considerable degree of an exhaustion in social situations and that he would expect Mr Gibson to suffer from this in a courtroom.  He thought that he would have “prominent mental fatigue” and that he would basically shut down and not be able to participate in the Court proceedings (t 1-9).  Dr Kovacevic thought this conclusion would apply notwithstanding accommodations, such as breaks in the proceedings (t 1-18).
73. [73]
    Dr Kovacevic thought that the fact that there was a mixture of material on the USB stick might make it difficult for Mr Gibson to give instructions to his solicitors (t 1-17), but I do not apprehend that it would.
74. [74]
    Dr Beech thought that overall Mr Gibson functions within the borderline intellectual range.  He can travel and use public transport, use a phone and a computer.  He thought that the formal assessments of his functioning were affected by problems of attention, motivation and possibly the development of a psychotic disorder. 
75. [75]
    Dr Beech described Mr Gibson as coherent and to the point, although his speech showed some inflexibility.  He was very concerned that his answers to Dr Beech’s questions would not incriminate him or make him look bad in Court.  He sometimes replied in an overly detailed manner and could not be distracted from doing so.  He sometimes claimed problems with his memory in answering Dr Beech’s questions, but Dr Beech thought this was an attempt to evade answering questions.  When Dr Beech asked him questions which contained wrong facts^[9] he corrected Dr Beech.  

76. [76]
    Dr Beech gave the opinion that Mr Gibson was fit for trial.  Dr Beech found that Mr Gibson understood the nature of the allegations against him and could give an account of them to his legal counsel.  He thought that he would be able to give an account to the Court if that were necessary.  He took into account that the charges Mr Gibson faced were simple.  
77. [77]
    Mr Gibson understood that the Court process was an enquiry into his alleged behaviour, “and in fact he’s been before Courts many times so I think he understands about courts and enquiries”.  He understood the difference between a plea of guilty and not guilty.  He could tell Dr Beech that the police might have proof which would include the USB and the written stories.  Dr Beech thought that with explanation he understood the concept of witnesses.  Mr Gibson understood that he had a lawyer and that the lawyer was to stand up for him in Court.  He said that if a witness was to lie about him in Court he would tell his lawyer.
78. [78]
    Accommodations would be necessary at any trial, but Dr Beech thought Mr Gibson would be able to follow trial proceedings appropriately.  Were Mr Gibson to give evidence he would need questions in simple form without leading and the Court would need to be mindful that he had a tendency to be over-inclusive as to detail, and might become angry or flustered if he were interrupted.
79. [79]
    Dr Beech did think that Mr Gibson’s language problems and his difficulty processing information and sustaining attention over a long period of time would make a trial difficult.  However, he pointed to the fact that Dr Douglas tested Mr Gibson for nearly three hours and it was only in the last 30 minutes that he became testy.  He thought the greatest difficulty Mr Gibson faced was that he would struggle with new information if it came out at trial.  However he said “it’s not that Mr Gibson can’t take in new information, he would just need more time to have it explained to him.” (t 1-27).  He thought Mr Gibson’s lawyers would have to check if he understood new information as it emerged at the trial but he thought that could be managed with breaks (t 1-30).  Dr Beech thought that Mr Gibson would struggle with the idea of running a mental health defence in a trial but he thought that he would be able to follow it in a general sense (t 1-28).  
80. [80]
    As discussed by Dr Varghese (assisting psychiatrist) with Dr Beech – t 1-31-32 – Mr Gibson coped well with a two hour hearing in the Mental Health Court.  Dr Beech thought that from time to time he looked distracted, in the sense that he was bored.  Nonetheless he thought he was settled throughout, looking at people and listening to what they were saying.  Dr Beech thought that some of the irritability and high distractibility which Mr Gibson exhibited before Dr Kovacevic and Dr Douglas might have been caused by his psychosis.  Medication might account for him being much more settled now.  At t 1-33 of the transcript of hearing I recorded that the courtroom was not quiet, and counsel for Mr Gibson agreed.  There were six people in the public gallery; six people at the Bar-table, three people at the associate’s desk and three people on the Bench.  The two psychiatrists sat in the jury box and moved about when it was their turn to give evidence.  As recorded, I had been coughing repeatedly during the hearing, a much more obvious noise than Dr Kovacevic’s exhaling during his examination of Mr Gibson.  
81. [81]
    Counsel for Mr Gibson conceded that he thought that with accommodations Mr Gibson was fit for trial.

Findings

82. [82]
    In relation to the breach of bail, there is a dispute of fact, so I do not deal with that matter.  In relation to the charge of producing child exploitation material, I find that Mr Gibson was of unsound mind.  In relation to the assault and the possession charge, I find he was not of unsound mind.
83. [83]
    I prefer the opinion of Dr Beech in relation to fitness.  There will certainly need to be accommodations at any trial.