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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION : PERTH
CITATION : THE STATE OF WESTERN AUSTRALIA -v- TJD [2019] WADC 176
CORAM : TROY DCJ
HEARD : 25 OCTOBER 2019
DELIVERED : 13 DECEMBER 2019
PUBLISHED : 28 MAY 2025
FILE NO/S : IND 2257 of 2018
BETWEEN : THE STATE OF WESTERN AUSTRALIA
AND
TJD
Catchwords:
Criminal procedure – Mental impairment – Fitness to stand trial – Ability to defend charges – Retrograde amnesia – Nature of defence – Turns on own facts
Legislation:
Criminal Law (Mentally Impaired Accused) Act (WA), s 8, s 9, s 10
Result:
The accused is fit to stand trial
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Representation:
Counsel:
The State of Western Australia
:
Mr L Hobson
Accused
:
Mr D N Ryan
Solicitors:
The State of Western Australia
:
State Director of Public Prosecutions
Accused
:
Chelmsford Legal
Case(s) referred to in decision(s):
Kesavarajah v The Queen (1994) 181 CLR 230
Ngatayi v The Queen (1980) 30 ALR 27
R v Dennison (Unreported, NSWCCA, Library No BC8802160, 3 March 1988)
R v Drummond (Unreported, NSWCCA, Library No 60861/93, 27 May 1994)
R v Mailes (2001) 126 A Crim R 20
R v Peterson (No 2) [2014] NSWSC 966
R v Podola [1960] 1 QB 325; (1960) 43 Cr App Rep 220
R v Presser [1958] VR 45
R v RER [2001] WADC 133; (2001) SR (WA) 269
R v Richards (1994) 64 SASR 42
R v Sutherland [2012] ACTSC 62
R v T (2000) 109 A Crim R 559
R v W, R [2019] SASCFC 33
Russell v His Majesty’s Advocate (1946) SC (J) 37
Sinclair v The Queen (1946) 73 CLR 316
The State of Western Australia v Forde [2019] WADC 158
The State of Western Australia v Tekle [2017] WASC 170
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TROY DCJ:
Introduction
1
The State allege that between 28 February 2014 and 1 September 2015 the accused man, TJD persistently engaged in sexual conduct with MMR, a child under the age of 16 years. During this period the accused was aged 28 and then 29, whereas MMR was aged, variously 13, 14 and 15. The original statement of material facts asserted that during that period TJD sexually penetrated MMR on 12 specified occasions including penile/vaginal intercourse. It is also alleged that TJD sexually penetrated MMR with various sex toys.
2
TJD was arrested and charged on 2 February 2017. Over the next 13 months TJD appeared at the Magistrates Court on 12 occasions. On 2 March 2018 TJD attempted to kill himself. Attending police officers saved his life by breaking down a door and St John Ambulance (SJA) officers then resuscitated him by CPR resulting in a return of spontaneous circulation after four minutes. On examination at the scene his Glasgow coma scale was 3/15. He was admitted to the Emergency Department of Fiona Stanley Hospital where his GCS score was 11/15 on arrival subsequently improving to 14/15. He absconded from the ward for a cigarette on 6 March but was found nearby and returned by the SJA. An MRI scan conducted on 8 March 2018 revealed a pattern of signal abnormality consistent with hypoxic ischaemic injury. He was discharged on 22 March 2018 after 22 days of rehabilitation. He next attended the Magistrates Court on 3 May 2018.
3
On 7 December 2018 TJD was committed from the Magistrates Court to the District Court without entering a plea, under s 17 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (the Act). Thereafter the matter was set down for a fitness to stand trial hearing on 25 October 2019, although it was only on the morning of that hearing that a formal application was made that TJD was unfit to stand trial.
The 25 October 2019 hearing
4
On 25 October 2019 the State called as a witness a senior clinical neuropsychologist, Dr Mandy Vidovich. Counsel for TJD cross-examined Dr Vidovich. I received a report of Dr Vidovich dated 27 September 2019 as exhibit 2. The defence did not call TJD to give evidence, but did call Dr Craig Hargate, also a neuropsychologist.
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I
received a 1999 article referenced by Dr Hargate entitled ‘Disproportionate retrograde amnesia in a patient with herpes simplex encephalitis’ as exhibit 1. I received Dr Hargate’s initial report of 13 April 2019 as exhibit 3.1 and an addendum report of 4 August 2019 as exhibit 3.2.
5
Following the evidence of the two respective expert witnesses I reserved my decision having made programming orders for written submissions. Counsel for TJD was not in a position to provide written submissions any earlier than 18 November 2019. Counsel for the State was not in a position to provide responsive submissions any earlier than 29 November 2019.
Material provided post the 25 October 2019 hearing
6
On 25 November 2019 counsel for TJD forwarded an urgent email from Dr Hargate. As will be seen, in the course of the 25 October 2019 hearing each party directed some questions as to the significance, or otherwise, of the fact that there had been no further MRI brain scan conducted on TJD since March 2018. Dr Hargate disagreed with the suggestion in cross-examination that a follow-up MRI would have enabled a more definitive conclusion or opinion about retrograde amnesia.1 Following the hearing, Dr Hargate advised that it had come to his attention that TJD had a repeat MRI brain scan on 21 November 2019 at Fiona Stanley Hospital.
7
I formally received the 21 November 2019 MRI report as exhibit 4 and Dr Hargate’s 25 November email, which I treated as a further report, as exhibit 5. In accordance with further programming orders, the State filed a further report, dated 28 November 2019 from Dr Vidovich which I will receive as exhibit 6. The State then filed its responsive submissions on 3 December 2019.
Statement of issues
8
TJD is presumed to be mentally fit to stand trial: s 10 of the Act. Has TJD established on the balance of probabilities that he has a mental impairment as defined? If he does, is he is unfit to stand trial because his asserted retrograde amnesia means that he is unable to properly defend the charges?
1 ts 117.
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Relevant personal information relating to TJD
9
The following details of TJD’s background emerged from the medical reports and the source documentation. TJD was born on 24 November 1985 in Zimbabwe. He moved to Australia with his parents in around 2000. He is the youngest of four children. His parents separated at some stage and his father is now deceased. He left school at the end of year 12.
10
As I have mentioned, the alleged offences were committed between 28 February 2014 and 1 September 2015. Detectives from the sex assault squad executed a search warrant at TJD’s home address on 15 September 2016 and seized items belonging to him. He was interviewed at the Murdoch police station and admitted to knowing MMR. The police continued their enquiries before formally arresting and charging TJD on 2 February 2017.
11
On 2 March 2018 TJD was hospitalised as a result of his suicide attempt before being released on 23 March 2018. On 31 July 2018 an EEG was performed which revealed no reported epileptiform abnormalities. In November 2018 he was assessed by a clinical neuropsychologist Dr Vuletich who reported on 14 November 2018.
12
On 13, 14 and 30 March 2019 Dr Hargate interviewed TJD resulting in his 13 April 2019 report. On 12 and 13 August 2019 Dr Vidovich interviewed TJD leading to her report of 27 September 2019.
The alleged offences
13
The State have charged TJD with persistently engaging in sexual contact with MR a child under the age of 16 years with the period specified under s 321A(5) as between 28 February 2014 and 1 September 2015. The State are required to prove that TJD engaged in persistent sexual conduct on three or more occasions. I understand that the State, through MMR, will allege as follows.
14
In March or April 2014 TJD penetrated MMR’s vagina with his penis when she was aged 13. On a date unknown in 2014 when MMR was aged either 13 or 14 she performed oral sex upon TJD. On a date unknown in 2014 when MMR was aged either 13 or 14 TJD performed oral sex upon MMR.
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15
In May 2014 TJD penetrated MMR’s vagina with his penis when she was aged 14. This was after he had shown her a pornographic video purporting to show a father having sexual intercourse with his daughter.
16
In May 2014 TJD penetrated MMR’s vagina with his penis when she was aged 14. TJD tied her hands and feet in this episode so as to simulate rape.
17
On another occasion at around the same time TJD required MMR to wear a school uniform and again they engaged in penile/vaginal sexual intercourse.
18
On 17 October 2014 when MMR was aged 14 they both stayed at the Rendezvous hotel at Scarborough Beach and engaged in sexual intercourse utilising three different positions. Within the brief there is evidence of a booking made by TJD for one night on 17 October 2014 for 2 adults – PB 145.
19
On another occasion shortly after that time TJD penetrated MMR’s anus with his penis. On another occasion shortly after that time it is alleged that TJD penetrated MMR with a dildo.
20
On 15 May 2015 when MMR was aged 15 they both stayed at the Pagoda hotel at Como and TJD performed cunnilingus on MMR. He then penetrated her vagina with his penis until he ejaculated. Within the brief there is evidence of a booking made by TJD for one night on 15 May 2015 for 2 adults – PB 148 – 151.
21
Finally, in August 2015 TJD and MMR engaged in penile/vaginal intercourse for the last time.
22
None of these alleged events involve conduct of a nature that could have easily been forgotten by TJD.
23
Photographs said to be of TJD and MMR, in physical contact with one another, are in the prosecution brief at PB 157 – 158, 162 – 164, 175.
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The relevant statutory framework
24
Mental unfitness to stand trial is dealt with in pt III of the Act. Section 8 of the Act provides:
Interpretation
In this Part, unless the contrary intention appears –
mental illness means an underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli;
mental impairment means intellectual disability, mental illness, brain damage or senility;
trial means all court proceedings for an offence other than –
(a) proceedings in relation to bail; and
(b) sentencing proceedings.
25
Mental unfitness to stand trial is defined in s 9:
An accused is not mentally fit to stand trial for an offence if the accused, because of mental impairment, is –
(a) unable to understand the nature of the charge; or
(b) unable to understand the requirement to plead to the charge or the effect of a plea; or
(c) unable to understand the purpose of a trial; or
(d) unable to understand or exercise the right to challenge jurors; or
(e) unable to follow the course of the trial; or
(f) unable to understand the substantial effect of evidence presented by the prosecution in the trial; or
(g) unable to properly defend the charge.
26
These factors are framed disjunctively and so in the event that it is established that an accused has a mental impairment and any one of the factors particularised at s 9(a) to s 9(g) are established, it follows that he or she is unfit to stand trial.
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27
In this case however it is accepted that none of criteria (a) to (f) are met and the question on unfitness to stand trial depends entirely upon the establishment of criteria (g).
28
TJD is presumed to be mentally fit to stand trial unless and until the contrary is found under pt 3 of the Act: s 10(1).
29
Applying s 12(1) of the Act, I must decide the question of whether TJD is not mentally fit to stand trial on the balance of probabilities, after inquiring into the question and informing myself in any way I see fit.
30
A finding that an accused person is not mentally fit to stand trial will, if the conditions in s 19(5) are satisfied, result in that person being subject to a custody order without conviction. Alternatively, a finding of unfitness to stand trial could result in the indictment being quashed and the accused released.
Mental impairment
31
Dr Vidovich accepted that TJD has suffered some brain injury.2
32
The 8 March 2018 MRI brain scan revealed bilateral and systemic signal abnormality in the hippocampo and the caudate nuclei and putamen consistent with hypoxic/ischaemic injury. Dr Vidovich considered that a ‘good neuroradiologist’ will comment on whatever they find, regardless of whether the clinical question was asked in the first instance.3
33
In his 25 November 2019 email Dr Hargate stated that the 21 November report confirms that the brain damage that was previously found in March 2018 is still patently present and indeed there has been a worsening in the extent of that brain damage by further loss of brain volume.
34
The further MRI reveals that since March 2018 there has been volume loss with associated T2/FLAIR high signal in the globus pallidus and in the caudate heads, in respect of the latter greater on the right with less pronounced interval volume loss of these nuclei. Abnormal T2/FLAIR high signal persist in the hippocampal bodies, with mild interval volume loss. Imaging appearances are consistent with evolution of the previously demonstrated hypoxic/ischemic insult.
2 ts 75.
3 ts 81.
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There is no acute or interval infarct, new area of brain parenchymal
signal abnormality or overt interval brain parenchymal volume loss in other parts of the brain. Major intracranial flow voids are normal. Orbits and extracranial soft tissue structures within the field of view are unremarkable.
35
Dr Hargate contends that the worsening of brain damage since March 2018 confirms an error in Dr Vidovich’s assertion about oedema (rather than organic brain damage) being a potential cause of the findings on the 2018 scans. Dr Hargate maintains that, as he explained in his report, it is damage to these particular brain structures that are most implicated in retrograde amnesia. Additionally, Dr Hargate asserts that the extent of TJD’s brain damage is far worse than that of a patient with 10 years of retrograde amnesia that is reported in the article tendered as exhibit 1.
36
Dr Hargate considered that TJD had at least a mild vascular neurocognitive disorder as reported at par 14.9 of his report.4 He considered that TJD has an impairment of his cognitive function caused by hypoxic brain injury and that based on his cognitive testing and the radiology findings it was evident that TJD has brain damage.5 As set out at par 14.8 Dr Hargate applied the DSM-IV tool so as to reach a diagnosis of a mild vascular neurocognitive disorder.
37
So far as Dr Vidovich was concerned, this more recent MRI did not cause her to alter her opinion based upon the cognitive testing of TJD which I will discuss below. She considered that neuroimaging in and of itself should not be relied upon as confirmation regarding subjective concerns particularly if there are notable clinical discrepancies which she contends for in TJD’s case.
38
Obviously whether a person is suffering from a mental impairment is to be determined at the time of the application. The onus of proof is on TJD. He relies upon the MRI scans of 8 March 2018 and 21 November 2019 in combination with Dr Hargate’s neuropsychological assessment.
39
The term ‘brain damage’ is not further defined in the Act. The word ‘damage’ is not defined in Butterworth’s medical dictionary. If one has recourse to the Oxford English dictionary it would appear
4 ts 93 – 94.
5 ts 111.
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that the terms damage and injury are interchangeable.
Injury in turn means a hurt.
40
I am satisfied that the injury initially noted on 8 March 2018 still exists. I note that the initial MRI scan was conducted some six days after the original insult. I apply a layman’s understanding that unlike most other cells in the body, brain cells do not regenerate when they are destroyed. That does not mean that a recovery cannot occur. It does, it seems to me, mean that the original injury is permanent in the sense of a loss of cells that cannot be regenerated, although the brain has a capacity to reorganise itself, to an extent, in order to regain lost function. That assessment is consistent with the 21 November 2019 MRI.
41
Viewed in that way, TJD will always be subject to a brain injury and accordingly I am satisfied that he has a mental impairment as defined under s 8 of the Act. I must now consider whether that injury means that TJD is unable to properly defend the charge, in particular because of his suggested retrograde amnesia.
Retrograde amnesia
42
Dr Vidovich explained that retrograde amnesia is the inability of an individual to be able to recall information preceding the injury or insult to the brain.6 Dr Vidovich accepted the possibility that TJD has some inefficiencies or mild deficits in his memory.7 She accepted that he has suffered some brain injury.8 When asked about the possibility that this hypoxic brain injury resulted in retrograde amnesia Dr Vidovich noted that retrograde amnesia is typically correlated with the severity of the brain injury. The brain cells that have a vulnerability to the effects of lack of oxygen or blood supply would tend to be around the temporal lobes.9
43
Dr Vidovich noted, however, that neuropsychologists do not know what components of the brain are specifically involved in retrograde amnesia, and it could be in multiple different parts of the brain.10 She accepted that brain damage, depending on where it is, could result in retrograde amnesia.11
6 ts 49.
7 ts 74.
8 ts 75.
9 ts 76.
10 ts 79.
11 ts 80.
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44
Dr Hargate considered TJD’s brain damage as consistent with retrograde amnesia, noting his summary of the literature at par 12.13. The common brain structures associated with retrograde amnesia matched those reported by the radiologist.12
45
So, there is no doubt that the brain injury TJD sustained could have left him with retrograde amnesia.
46
By reference to par 12.6 Dr Hargate defined retrograde amnesia as a loss of, or difficulty retrieving memories for events that have occurred, or information that has been learnt before the onset of an injury or disease.13
47
Amnesia is defined in the Butterworth’s medical dictionary second edition as ‘loss of memory of varying degree attributable to organic or psychological causes’. Retrograde amnesia is ‘loss of memory for events preceding the causal illness or injury’. Anterograde amnesia is ‘the loss or impairment of the memory for events which have occurred since the onset of the causative disorder and after consciousness has been regained’.
Does TJD exhibit anterograde amnesia?
48
Dr Vidovich explained that anterograde amnesia is (an impairment to) the capacity of the individual to lay down new memories to recall, new information and to then be able to provide that information at different time points.14 Dr Vidovich conducted a formal assessment with the Evaluation of Competency to Stand Trial – Revised tool.15 Results from the most recent assessment together with scores obtained at the time of his March 2018 evaluation did not support TJD having an anterograde amnesia.16 According to Dr Vidovich an intact anterograde memory makes it less likely that a person has retrograde amnesia.
49
Dr Vidovich noted a consistency in her results and those obtained by Dr Hargate regarding TJD’s capacity to learn and retain new information.17
12 ts 112.
13 ts 93 – 94.
14 ts 48.
15 ts 47.
16 ts 48.
17 ts 49.
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50
In terms of testing for anterograde amnesia (ts 64), Dr Vidovich administered a 16-item wordlist test which involved listening to 16 words repeated a number of times and after a certain number of repeats assessing how many words the patient could remember. Dr Vidovich agreed that when patients are exposed to a test more than once there is an effect called the ‘practice effect’. A sub sample will be administered a test a second time to identify the degree to which previous exposure to that information, has influenced their subsequent performance. And so one looks at practice effects to identify whether any chance in the person’s performance is over and above what might be anticipated in the context of practice effects alone.18 Dr Vidovich considered the concept of practice effects to be quite interesting in people that have memory deficits in that ‘if you don’t remember, you don’t remember.’19 So, if TJD demonstrated improvement because of practice effects, it would suggest that his memory is pretty good. He also improved on the prose material test, but she could not comment on how much that could be due to the practice effect.20
51
Although TJD made a high number of repetitive errors Dr Vidovich did not consider that necessarily shows some weakness in the executive function of his brain. She felt that that was more to do with some attentional issues with TJD, in terms of being able to consistently monitor what it was that he was saying. That might be due to some anxiety in the test situation.21
52
With respect to this test, Dr Hargate noted that TJD’s performance reached below average limits.22 Dr Hargate considered that Dr Vidovich’s methodology in administering exactly the same test was ‘unforgiveable’ because there was another alternative option. In respect of that test and the prose material from the Wechsler Memory Scale23 Dr Hargate considered that Dr Vidovich’s findings that TJD scored average to above average on the tests was attributable to the practice effect.24
18 ts 61 – 62.
19 ts 63.
20 ts 64.
21 ts 67.
22 ts 103 – 104.
23 ts 104.
24 ts 105 – 106.
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53
In regards to the prose test Dr Hargate considered that it was difficult to quantify the degree of the practice effect as there was not the same level of repetition. In respect of delay recall, Dr Hargate scored TJD as below average whilst Dr Vidovich recorded a score of average. Notwithstanding the apparent difficulty in quantifying the degree of the practice effect, again Dr Hargate attributed this superior result to the practice effect.25
54
I accept Dr Vidovich’s evidence that if TJD achieved an improved score in a subsequent test because of the practice effect that in itself demonstrates a capacity of the individual to lay down new memories to recall new information and to then be able to provide that information at different time points. That would tell against anterograde amnesia, certainly a moderate or severe anterograde amnesia. Dr Vidovich never concealed the fact that she employed the same test. She was untroubled by Dr Hargate’s concerns, given her opinion that if a patient genuinely suffered from anterograde amnesia it would follow that their performance could not possibly improve because of the practice effect. Dr Hargate was entitled to criticise the methodology used by Dr Vidovich, but to describe it as ‘unforgivable’ was, in my view, unjustified.
55
Dr Hargate did not consider anterograde amnesia to be an all or nothing concept. Rather, it can be present in different degrees. He noted that at page 1 of the article tendered as exhibit 1, the authors refer to the combination of retrograde amnesia with relatively mild or absent anterograde amnesia.26
56
From the scores obtained for the patient in this article the authors concluded that she had mild anterograde amnesia.27 Dr Hargate considered that the results leading to that characterisation were comparable to the results obtained both by him and Dr Vidovich for TJD.28 Dr Hargate considered that it was possible to have retrograde amnesia with mild anterograde amnesia.29
25 ts 106.
26 ts 107.
27 ts 108.
28 ts 110.
29 ts 110 – 111.
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57
In terms of anterograde amnesia, TJD’s visual memory scores in the tests Dr Hargate conducted were extremely low. TJD’s verbal scores were mildly reduced. Accordingly Dr Hargate felt that TJD had mild to moderate or mild to severe anterograde amnesia, so that it is difficult to have one term to encapsulate two disproportionate scores.30
58
On balance I accept that TJD has some impairment of memory for events that have occurred since 2 March 2018. The extent of that impairment is difficult to quantify. In my view it is significantly less than the extent of the retrograde amnesia contended for. Particularly given that the latter is said to extend for four or five years and is so profound as to completely defeat any ability of TJD to independently remember anything about MMR.
Does TJD exhibit retrograde amnesia?
The suggested length of the retrograde amnesia
59
Dr Hargate’s contention that TJD has retrograde amnesia was based upon the March 2018 MRI, testing and other collateral information but also reports from TJD himself and TJD’s mother.31 Neither TJD nor his mother, however, gave evidence at the 25 October hearing. Dr Hargate found it difficult to quantify the degree of retrograde amnesia he contended was present in TJD. His characterisation of moderate was based upon the fact that it appears to span a period of about four to five years.32 So, on Dr Hargate’s assessment TJD has an inability to be able to recall information in the period of approximately March 2013 or March 2014 to March 2018. The alleged criminal charges commence in February 2014. Whilst I am satisfied that it is medically possible for TJD to have retrograde amnesia for this period, the coincidence with the commencement of the alleged period of offending is striking.
Can there be partial retrograde amnesia?
60
Dr Vidovich considered that ‘intermittent or patchy recall’ is inconsistent with the concept of retrograde amnesia. Dr Vidovich considered that clinical literature references retrograde amnesia as a blanket difficulty in a person’s ability to recall information from the time point preceding the injury back in time. Amnesia in and of itself is a significant impairment in recall.33
30 ts 112.
31 ts 115.
32 ts 111.
33 ts 56.
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61
Dr Vidovich considered that ‘amnesia’ is an all or nothing term. It means that a person cannot learn and retain new information. So generally clinicians will refer to a person as having a memory deficit rather than amnesia per se.34 Dr Vidovich was asked about the 1999 academic article, exhibit 1, which asserted that,
over the past two decades, however, focal or isolated retrograde amnesia, severe retrograde amnesia, in combination with relatively mild or absent anterograde amnesia’ has been reported.
62
Dr Vidovich pointed to the work of a Dr Michael Kopelman which identifies and critiques some of this previous earlier literature where there have been (supposed) cases of a disproportionate or an isolated retrograde amnesia.35
63
Dr Vidovich stated that neuropsychologists would typically not use the term ‘amnesia’ unless they were specifically referring to an all-encompassing memory impairment. They would generally use the terms ‘deficit’ or ‘impairment’ unless the individual actually has amnesia, which one might see in someone with Alzheimer’s disease who cannot take on board or learn or retain new information. In that context the characterisation ‘mild’ would generally not apply.36
64
For his part, Dr Hargate disagreed with Dr Vidovich’s conclusion that there is no convincing evidence that TJD is suffering from retrograde amnesia.37 He disagreed with the suggestion that retrograde amnesia involves the complete absence of recall of pre-injury events. He considered that was not supported by the research evidence. Rather, the research evidence supports particular patterns. Dr Hargate noted that there are some exceptional cases where retrograde amnesia can be very dense, namely a complete absence of memory, but in most cases it is a matter of degree.38 One pattern in the literature is of memories that are oldest being the best. And then as you move forward in time towards the injury, the capacity to remember progressively worsens.39 As noted below, that does not seem to be the pattern with TJD. In Dr Hargate’s opinion retrograde amnesia is variable.40
34 ts 70.
35 ts 71.
36 ts 73.
37 ts 113.
38 ts 94.
39 ts 94 – 95.
40 ts 95.
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65
Dr Hargate considered that the fact that TJD could remember some events that had happened two weeks earlier, in the context of his inability to remember other events (in particular details about his alleged offending) simply shows that his retrograde amnesia is patchy. It is not an absolute all or nothing phenomenon.41
66
Based upon the material before me I do not consider there is unanimity with the neuropsychological profession as to whether one can apply epithets such as ‘mild’ to amnesia, retrograde or anterograde or whether if one is using such terms one is really describing memory deficits not amnesia.
The significance of intact anterograde amnesia
67
Dr Vidovich considered that the fact that TJD can lay down new memories, such as reading about his stated pre-injury alcohol consumption in the medical notes suggests that his anterograde memory is intact. His ability to remember things he had read in the hospital notes or things that people have told him since his hospital admission and since his brain injury, would suggest that his anterograde memory is intact. That makes it less likely that he has a retrograde amnesia.42
68
Dr Vidovich elaborated that with a hypoxic brain injury it is rare, although not impossible, that an individual is capable of learning new things but cannot recall past events. She considered a situation where one had retrograde amnesia combined with a mild form of anterograde amnesia as unlikely but it could occur.43
69
As I have noted, in my view any anterograde amnesia is significantly less than the extent of the retrograde amnesia contended for.
Can retrograde amnesia be objectively tested?
70
Dr Vidovich stated that there are no formal test measures to assess malingering for a retrograde amnesia.44
71
Dr Vidovich stated that with any sort of assessment of retrograde memory, there are very limited test materials available because it is such a rare condition. Clinically it is rarely assessed. A clinician would obviously rely on a patient’s self-report but would also rely on
41 ts 97.
42 ts 58 – 59.
43 ts 61.
44 ts 53.
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their understanding of how memory works.
Dr Vidovich accepted that a hypoxic brain injury can impact on memory.45
Dr Vidovich’s evidence on the significance of other post 2 March 2018 events TJD can recall
72
Dr Vidovich expressed an opinion that initial neuropsychological assessment in the context of evaluation for TJD’s criminal matters revealed invalid test performances and significant concerns regarding attempts to feign cognitive impairment.46
73
Dr Vidovich noted numerous examples of TJD having intact retrograde memory and a pattern of recall that would be inconsistent with the stated level of retrograde amnesia. Dr Vidovich noted that with retrograde amnesia one would typically find graded memory loss, in that the events closest to the time of the injury are most challenging or most difficult for the person to recall, but when the person goes back in time, the memories are more relatively preserved.47 If that is so, then staying with Dr Hargate’s period of about four to five years, memories of around February 2014 when the offending is said to have commenced and when TJD is alleged to have met MMR should be relatively more preserved then, for example, events in February 2018. Further, if TJD was able to recall past events closer to the time of the injury, his recall for events further back in time should be intact to a degree.
74
Dr Vidovich referred to TJD’s self-report explaining his retrograde amnesia as inconsistent with the clinical evidence and with the research evidence around the nature of this condition. At the time of TJD’s hospital admission he was interviewed by a number of clinical professionals within the hospital and was seemingly able to provide details around events very close in time and leading up to his hospital admission.48
75
Dr Vidovich was asked about some sections of Dr Hargate’s report at par 5.9 that she commented upon in her own report. Dr Hargate had referred to a review by a consultant psychiatrist on 4 March 2018 where TJD could recall that he had moved house with his partner two weeks ago, had his own business called Panther Computers and works from
45 ts 59.
46 ts 53.
47 ts 49.
48 ts 50.
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home.
49 He did tell the psychiatrist that he could not remember his impending court case and charges, was asking why he was in hospital and describing his memory as fuzzy. On 7 March 2018 TJD ‘eventually admitted’ that he was involved in a court case which he found frustrating: par 5.11. On 8 March he could recall buying helium from a party supply store but was not sure why and said the incident was still fuzzy: par 5.17.
76
Also, at par 9.9 Dr Hargate had noted that TJD informed him that in the period from February 2017 to March 2018 he consumed alcohol more heavily.50 As set out at par 7.5 TJD reported to Dr Hargate that he worked in Karratha as a business systems analyst on a salary of $120,000 to $150,000 for seven years, and last worked in this role in 2016 when he was made redundant. He also advised that he has worked in the Uber industry since then.51
77
When asked about TJD’s professed inability to recall any of his prior IT knowledge, Dr Vidovich considered that it would be quite unusual to have no recall at all of TJD’s previous IT knowledge.52
Dr Hargate’s evidence on this point
78
Dr Hargate considered that there was no reason for TJD to have falsely asserted memory problems two days or so after his suicide attempt.53 Of course, if TJD recalled that 13 months earlier he had been arrested for extremely serious sexual offences with a child and that he had made multiple court appearances in respect of that matter since that time, objectively there is such a motivation.
79
Dr Hargate accepted that TJD recalled some aspects of his work but not others, in particular his professed inability to recall any of his prior IT knowledge. When advised that Dr Vidovich had expressed some scepticism about this, Dr Hargate stated, really as an assertive proposition, that TJD was exaggerating at this point. There was, of course, no evidence from TJD and Dr Hargate has not contemporaneously noted a belief that his patient was exaggerating at that point.54
49 ts 50 – 51.
50 ts 51.
51 ts 52.
52 ts 60.
53 ts 40.
54 ts 99.
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80
Dr Hargate considered that the notion of recall being patchy was consistent rather than inconsistent with a diagnosis of retrograde amnesia and would evidence a more moderate or milder form of such amnesia.55
81
When asked about TJD’s apparent recall of some matters, Dr Hargate thought that TJD had some fragments or ‘snippets’ of memory.56 When asked about the fact that TJD seemingly recalled that:
- he had moved house with his partner two weeks ago;
- he had previously run his own business;
- he recalled the business name;
- he worked from home;
- he lived with his partner;
- they were engaged;
- he was planning their wedding.57
82
Dr Hargate’s response was a question of counsel:58
how many pieces of information could be of events, experiences in the couple of weeks before the injury could he have potentially recalled or not recalled? Six out of a thousand?
83
I asked Dr Hargate whether he was working on the basis that TJD had exhausted his memory at that stage and these six pieces of information were literally the only matters that he could recall, or that these were some of the matters that he related. Dr Hargate acknowledged that these pieces of information could be some (of the matters that he recalled and could relate at that time).59
84
Dr Hargate accepted that TJD did not have a completely blank memory for the two-week period leading up to the point when he was being questioned in hospital.60
55 ts 100.
56 ts 119.
57 ts 119 – 120.
58 ts 120.
59 ts 120.
60 ts 120 – 121.
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85
When asked about TJD advising Dr Hargate that in the period following his arrest in February 2017 up to March 2018, he had consumed alcohol more heavily but he could not recall what his feelings were during that period,61 Dr Hargate stated that he did not know whether this a true memory or whether it was information that TJD was given at a later date. Dr Hargate did not recall if he had asked TJD about that.62
86
Dr Hargate was not prepared to accept that the information seemingly provided directly to Dr Hargate by TJD as set out at par 7.4 – par 7.5 constituted ‘quite a bit of information’.63 That records that TJD apparently told Dr Hargate that: - he left school at the completion of year 12 at aged 17;
- he worked as a concreter for a few months;
- he then began an apprenticeship as a cabinet maker;
- he left that apprenticeship after a couple of years due to a thumb injury;
- he then began to work in an office;
- he completed a certificate three in business IT in a one-year full-time course;
- amongst his subsequent IT roles was work for Supermarkets West Propriety Limited on a salary of $40,000 – $60,000 crosschecking barcodes;
- he worked as a business system specialist for two years on a salary of $80,000 per annum;
- he worked in Karratha as a business systems analysist on a salary of $120,000 – $150,000 for seven years;
- he was made redundant in 2016;
- he has worked in the Uber industry since.
61 ts 121.
62 ts 122.
63 ts 123.
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87
It is somewhat puzzling why Dr Hargate found himself unable to agree that this constituted ‘quite a bit of information’. It is also significant that Dr Hargate stated that in respect of this information he did not know whether they are genuine memories or something that TJD reported to him based upon information given to TJD by others. It is odd that Dr Hargate did not ascertain this in his interviews, whereas with details TJD reported about the alleged offences, as set out at par 3.10 – par 3.11, he did.64 When pressed on the matter Dr Hargate accepted that TJD qualified all of the information provided at par 3.10 – par 3.11.65 That is not apparently the case with any of the information provided at par 7.5 – par 7.6. This did not give rise to a ‘red flag’ so far as Dr Hargate was concerned.
88
Dr Hargate rejected Dr Vidovich’s conclusion that the ability to recall so many different events prior to March 2018 refuted the presence of a retrograde amnesia. In so doing he relied upon some matters that TJD stated that he could not recall such as when this business ended or how he had commenced his work as an Uber driver.66 Dr Hargate considers that these partial recollections merely prove that the retrograde amnesia is patchy and vague, not completely absent in that period.67
89
In his report at par 3.10 Dr Hargate elicited from TJD that he thought the complainant was called (and gives the correct first name) and:68
I’m trying to call back to that time but I can’t recall. I can only recall what I read in reports.
90
Dr Hargate acknowledged at par 14.23 that he could not confirm with certainty that the retrograde amnesia is as TJD is claiming.69 Dr Hargate stated that there is no objective way of measuring retrograde amnesia. Whilst symptom validity tests can provide an objective score they could not be used to measure TJD’s retrograde amnesia.70
64 ts 127.
65 ts 131.
66 ts 123 – 124.
67 ts 124.
68 ts 125.
69 ts 126.
70 ts 115.
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Conclusions on retrograde amnesia
91
I accept Dr Vidovich’s conclusion as encapsulated at page 3 of her further 28 November 2019 report that TJD’s alleged retrograde amnesia is inconsistent with his ability to remember details in close proximity to the acute episode of brain injury and his demonstrable ability to encode and recall new memories at least to an extent.
92
I am satisfied that, as Dr Vidovich asserts at ts 50, TJD is able to recall past events closer to the time of the 2 March 2018 injury. I find it inconsistent with the body of science in this area that he would then have a complete absence of knowledge of MMR from February 2014 to March 2015, when other evidence in the brief, in particular the photographs, suggest that at the very least TJD knew MMR.
93
I accept that it is probable that TJD has some memory defects arising from his brain injury of 2 March 2018. But on the evidence before me TJD has not established that he has retrograde amnesia to the extent that he is deprived of any memory of MMR, or the alleged events of March 2014 to August 2015, as in effect he asserts to Dr Hargate.
Fitness to stand trial
The relevant authorities
94
The relevant principles have been settled for quite some time and I restate them by reference to the cases in which they were enunciated or repeated. Each case, of course turns on its own particular facts and circumstances.
95
The criteria set out at s 9 of the Act reflect what had long been the position at common law, namely what came to be known as the ‘Presser criteria’ as stated by Smith J in R v Presser [1958] VR 45 [48]. His Honour stated as follows:
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
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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.
96
In Ngatayi v The Queen (1980) 30 ALR 27, the High Court considered the former s 631 of the Criminal Code (WA) which provided for a jury deciding, applying the test at common law, if an accused is capable of understanding proceedings. Gibbs, Mason and Wilson JJ referred at (32) to comments by Dixon J in Sinclair v The Queen (1946) 73 CLR 316, 334 (also referred to in Presser) that,
it does not seem to have been noticed by text writers how high a degree of intelligence this test might demand if it were literally applied.
97
Their Honours stated at (32) – (33):
The test looks to the capacity of the accused to understand the proceedings, but complete understanding may require intelligence of quite a high order, particularly in cases where intricate legal questions arise. It is notorious that many crimes are committed by persons of low intelligence, but it has never been thought that a person can escape trial simply by showing that he is of low intelligence. We respectfully agree with the view expressed by Smith J in Presser that the test needs to be applied ‘in a reasonable and commonsense fashion’.
Smith J went on to say that there are certain minimum standards which the accused needs to equal before he can be tried without unfairness or injustice, but added that the accused ‘need not have the mental capacity to make an able defence’. The reference to mental capacity is explained by the fact that these remarks were made in relation to a statute which spoke of insanity, and not a want of capacity ‘for any reason’. The view that the accused need not have sufficient capacity to make an able defence, or to act wisely or in his own best interest, is accepted also in English cases … and accords with common sense.
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98
Those observations, concerning as they do the common law test, are equally applicable, in my view, to s 9. In the construction of this legislative text, the common law is commonly and appropriately used to elucidate the meaning of the grounds set out in the section: R v Sutherland [2012] ACTSC 62 [35] (Refshauge J).
99
Similarly, in R v Peterson (No 2) [2014] NSWSC 966 the matter came before Campbell J for a special hearing pursuant to the provisions of s 19, s 21 and s 21A of the Mental Health (Forensic Provisions) Act 1990 (NSW). His Honour observed at [11]:
The starting point, of course, must be the statute itself, but it is notable that the concept of fitness to be tried is not a statutory construct. Rather, the concept expresses fundamental values of the common law as Wood CJ at CL demonstrated in R v Mailes (2001) 126 A Crim R 20.
100
His Honour further observed at [12]:
Notwithstanding frequent statutory intervention the fundamentals of these principles have not changed much over centuries. The locus classicus of the content of the concept of unfitness to plead in Australian jurisprudence is the judgment of Smith J in R v Presser approved by the High Court of Australia in Kesavarajah v R (1994) 181 CLR 230.
101
In Kesavarajah v The Queen (1994) 181 CLR 230 the plurality summarised these minimum standards as requiring the ability:
(1) to understand the nature of the charge;
(2) to plead to the charge and to exercise the right of challenge;
(3) to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged;
(4) to follow the course of the proceedings;
(5) to understand the substantial effect of any evidence that may be given in support of the prosecution; and
(6) to make a defence or answer the charge.
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102
As Chesterman J observed in R v T (2000) 109 A Crim R 559, 565:
The authorities also suggest that the test is not a demanding one. If an accused realises, in general terms, what it is to be put on trial and can make sense of the evidence against him he can take a sufficient part in proceedings for the trial to proceed.
103
As Fiannaca J observed in The State of Western Australia v Tekle [2017] WASC 170, [93] regarding the criteria in s 9(g):
The meaning of ‘properly’ includes ‘in an appropriate or suitable manner’ and ‘correctly’. In the context in which it is used in s 9(g), I accept it connotes, among other things, the ability to consider in an informed way, and make rational choices about, defences that are reasonably open on the evidence and the submissions that should be made by the defence in respect of the evidence presented by the prosecution.
104
Not unusually, in the hearing before me the two experts provided opinions as to the ultimate issue of fitness to stand trial. For example, counsel for TJD continues71 to rely upon Dr Hargate’s observations at par 14.20 concerning what TJD needs to be able to do to properly defend the charges he faces. Whilst acknowledging that TJD can talk about memories of the alleged criminal events, Dr Hargate thought that one cannot be certain whether those are original memories, that TJD knows them because he was there at the time, or whether they are things that he has read at a later date in police documents, police interviews or from interviews with his legal representatives.72
105
Dr Hargate considered that TJD would not be able to provide a reliable account of his recall of any alleged events. If TJD had been accused of something that never happened if his memory was perfect, he could not have a memory of something that did not happen but he would at least have memory of that period of time so as to be able to say that an alleged criminal offence did not happen.73 His instructions to counsel as to what is true and what is not true would be unreliable.
106
The decision of fitness to stand trial is not a question for a specialist tribunal but for the presiding judicial officer. It is a matter I must determine after inquiring into the question. It is appropriate, obviously, that I consider the expert evidence, but the ultimate question is for me.
71 Written submissions at par 50.
72 ts 101.
73 ts 114.
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107
In R v RER [2001] WADC 133; (2001) SR (WA) 269 Yeats DCJ discussed the problem of experts in this area intruding into the ultimate issue and noted at [59] that the problem has been discussed an article, ‘The Assessment of Fitness to Stand Trial for Defendants with an Intellectual Disability: A Proposed Assessment procedure involving Mental Health Professionals and Lawyers’ (1999) 6 Psychiatry, Psychology and Law 207 – 214.
108
In that article the authors, both psychologists noted that:
Fitness to stand trial is a legal, not a clinical decision; the mental health profession offers opinion and the Court decides. Determining fitness is a moral, social and legal matter determined by legislation and the Courts using the commonsense viewpoint of laypersons … the Court should not shift responsibility to mental health professionals to define what fitness is when such practitioners do not have the specific ability to decide the legal issue.
109
The expertise of a neuropsychologist does not extend to the conduct of a criminal trial. Nor does it extend to the requirements of the presiding judicial officer to ensure a fair trial as between the state and the accused. Nor indeed does it extend to an application of the principles to be derived from authorities as to whether memory deficits or amnesia preclude an accused person from defending him/herself against criminal charges.
110
I agree with the observations of Yeats DCJ in R v RER at [65]. I am not required to consider whether TJD is mentally unfit to stand trial generally. I am required to determine whether TJD is mentally unfit to stand trial in relation to this particular charge.
111
I note the decision in The State of Western Australia v Forde [2019] WADC 158 which was published on 22 November 2019.
Authorities on unfitness to stand trial due to amnesia
R v Mailes
112
In R v Mailes (2001) 126 A Crim R 20 the appellant was found guilty of murder. Prior to appearing for trial, an inquiry was conducted into the appellant’s fitness to stand trial pursuant to the Mental Health (Criminal Procedure) Act 1990 (NSW). The jury found that the appellant was fit to stand trial. The question of the appellant’s possible unfitness was again raised by counsel before the trial and on separate occasions during the trial; however the trial judge declined to order a
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further fitness hearing.
The appellant appealed against the conviction, relevantly on the ground that the trial miscarried due to the fact that a real question arose at trial as to the appellant’s fitness which should have led to a further fitness hearing. Before determining the issue on appeal the court was required to consider whether an accused who is intellectually disabled, but who does not suffer from a mental illness, can qualify for a fitness hearing under that Act.
113
As Wood CJ at CL (with whom Spigelman CJ and James J agreed) noted at [135] – [137] in R v Podola [1960] 1 QB 325; (1960) 43 Cr App Rep 220 the accused argued that he was unfit to stand trial, as he had lost his memory of the relevant period, through a condition of hysterical amnesia. The trial judge instructed the jury to consider whether the accused’s amnesia was genuine, and if so, whether he was unfit to stand trial. The jury found that the accused did not suffer amnesia, and he was later convicted. Although the accused did not appeal against the conviction, an appeal was lodged by the Home Secretary to determine whether there had been a misdirection on the subject of fitness to plead, concerning whether or not the onus of proof rested on the prosecution or the defence. The Court of Criminal Appeal found that even if the accused had in fact lost his memory this would not impact upon his fitness to be tried.
114
His Honour then referred at [172] to R v Drummond (Unreported, NSWCCA, Library No 60861/93, 27 May 1994) where the issue arose in a case where the accused claimed that he had amnesia and could not recall committing the offence. It was held applying R v Podola and Russell v His Majesty’s Advocate (1946) SC (J) 37 and following R v Dennison (Unreported, NSWCCA, Library No BC8802160, 3 March 1988) that a condition of amnesia resulting from brain damage of a diffuse kind, does not operate to bar the trial of an accused, and that as a consequence the direction by the trial judge to the jury to find the accused fit was correct.
R v Drummond
115
In Drummond the accused suffered a serious motor vehicle accident in December 1991 and was arrested on a suspicion of sexual assault offences in September 1992. In the motor vehicle accident Mr Drummond sustained a fractured skull with underlying haemorrhage resulting in a diagnoses of residual brain damage and likely consequent memory deficit. One of the experts who testified provided the opinion that there was a genuine impairment of memory
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and the claimed amnesia in respect of the offences to be charged was
feasible in terms of the brain damage suffered and consistent with the type of memory defect that other people with similar brain damage might experience.
116
The accused had told this expert witness that he did not know of his own memory about the alleged offence but he had learned amount of information by going over and over it with a co-accused. The witness considers the difficulty lay in the ability of the accused to instruct his counsel concerning the events central to the charges. The witness believed the accused was competent in relevant respects apart from his inability to give his legal advisers his version or instructions upon the events which were the subject of the charges.
117
The medical witness called by the Crown thought that apart from a history of patchy memory loss there was nothing significant to find. He did not think that the memory loss was inconsistent with the after-effects of an injury and thought it was present but probably subtle and worse at some time than others.
118
Drummond’s appeal was on the basis that the trial judge erred in deciding that there was no evidence fit to be left to the jury to sustain a finding that the accused was unfit to be tried. Counsel for the accused placed reliance upon the observations of Smith J in R v Presser.
119
Grove J noted (page 6) that Presser was a case in which the medical reports indicated the presence of serious mental defects in the particular accused since youth as opposed to a discrete issue about a gap in memory. Grove J noted that save for the fact that the source of the amnesia was hysteria rather than traumatic brain damage the facts in the Scottish case of Russell v His Majesty’s Advocate raised an almost identical issue. In that case it was said that the accused had a loss of memory extending over and covering the period of the charged offences. Lord Sorn approached matters on the basis that it is enough for an accused to be able to rationally speak to his/her advisers at the time of trial and tell them what he knows or does not know of the charges. His Lordship rejected a view that for an accused to be fit to plead he must possess a recollection of the period the charges so that he can give his version of the events in such explanation as he thinks fit to those who are going to defend him. Lord Sorn’s ruling was upheld by a full bench of the High Court and followed by the English Court of Criminal Appeal in R v Podola.
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120
His Honour then referred to the judgment of Street CJ in Dennison. The appellant there suffered from a state of alcoholism. He had asserted, and the psychiatrist called on his behalf endorsed that assertion, that he had complete amnesia so far as the offence charged against him. Street CJ (with whom Carruthers and Finlay JJ agreed) said:
The submission made by Mr Miles on his behalf is that the appellant, being unable to remember the events which the prosecution alleges constitutes the offence, is unfit to be tried because he cannot give his version of the facts to his legal advisers in his defence. That proposition is one with which I find myself unable to agree. The question on the trial of unfitness to plead relates not to the mental state at the time of, or recall of the events constituting the crime. It relates to the then current mental state of the appellant, that is to say, his state at the time state at the time of the trial itself.
121
Grove J observed (page 7) that if at trial the prosecution adduces evidence which might – even in the light of the onus of proof – give rise to an expectation that an explanation be forthcoming from the accused, there is no reason why an explanation of the absence cannot be given. Nor is the accused prevented from using information derived from secondary sources as he or his advisers think fit. It is an obvious perception that an accused person who has an actual memory of events out of which charges have been brought against him is advantaged in comparison to a person who has no such memory. The question is, however, whether such comparison leads to the result that the person so disadvantaged should be entitled effectively to raise a plea in bar of trial. Grove J concluded that he could not either in general or by reference to the NSW Act.
122
Grove J (at page 8 to page 9) respectfully commended adherence to the opinion of the English Court in Podola that the trial judge ought to point out to the jury that they must take into consideration carefully any evidence that the accused cannot remember the events otherwise demonstrated in the evidence.
123
Gleeson CJ observed (at page 9 to page 10):
As had been pointed out by Grove J, the decision in R v Dennison is supported by a line of English and Scottish authorities to the effect that amnesia does not constitute unfitness to plead to a criminal charge.
The common sense behind this conclusion is, I consider, fairly apparent. There may be any number of reasons why a person accused of a crime may be unable to recollect the events of the occasion on
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which the alleged crime occurred. Amnesia may be one such reason; age, other forms of infirmity, or simply distance in time between the alleged events and the trial, might explain the inability to recollect. The fact that an accused person cannot, for one reason or another, recollect the events of the occasion of the alleged crime does not mean that the accused is, within the words of R v Presser, incapable of letting counsel know what his version of the facts is. The accused person who says to his counsel ‘I can’t remember what happened on that day’ is not thereby unfit to plead.
Amnesia, which may be one particular reason why a person is unable to recall the events of the occasion, could itself result from any number of conditions or circumstances including from trauma. It perhaps hardly need to be added that if the inability of an accused person to recall the events of the occasion of an alleged crime were to be accepted as a reason why the person should never be put on trial, there might be expected to be a substantial reduction on that account alone in the waiting times for criminal trials.’
124
For my part I respectfully wholeheartedly agree with those observations of Gleeson CJ, which entirely accord with my notion of common sense.
R v Richards
125
In R v Richards (1994) 64 SASR 42 (Mullighan J) the court was concerned with an application for a permanent stay as opposed to a request for a finding that the accused is unfit to stand trial. Nonetheless this case remains instructive. The applicant was charged with four counts of unlawful sexual intercourse with a girl aged 15 years and one count of indecent assault upon the same girl. He brought an application for a permanent stay of the criminal proceedings on the ground that a fair trial was not possible due to loss of memory of his life events at the time the alleged were said to have occurred.
126
Police officers spoke to the applicant on 13 November 1993. They told him, in a general way, of the allegations made by the girl which he denied. He returned to his mother’s home and attempted suicide by hanging. He remained totally unconscious for about eight days and then gradually regained consciousness over a period of some days. By 23 November he was conscious but was not fully orientated. Thereafter his physical state improved but he suffered brain damage due to anoxia caused by strangulation in his attempt on his life.
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127
His Honour concluded, for the purpose of resolving the issues raised by the application, that the applicant did sustain brain damage due to anoxia caused by the hanging incident and in consequence suffered both anterograde and retrograde amnesia to such an extent as not to be able to remember many of his life events at the time the alleged offences are said to have occurred. His Honour had some difficulty in determining precisely the extent of his loss of memory of events at relevant times due to inconsistencies in the applicant’s evidence as to what he could remember but his Honour was not prepared to conclude that such inconsistencies were due to a lack of truthfulness. His Honour thought that the applicant had suffered brain damage and features of his demeanour in the witness box, such as delay in answering questions and inconsistencies in his evidence might be symptoms of that damage. As I have noted, in the matter before me TJD did not give evidence.
128
Mr Richards’ evidence was that he would not say whether he had sexual intercourse with the girl or indecently assaulted her as alleged or at all because he simply could not remember. It is in these circumstances that he claimed his trial could not be fair and that there should be a permanent stay on the ground that the court will prevent its process being used in a manner which gives rise to unfairness. His counsel submitted that it is inconceivable that Mr Richards could have a fair trial when he could not recall matters which may afford a defence or assist in the preparation and presentation of a defence.
129
Furthermore, he argued, if the matter proceeds to trial the focus may be upon the genuineness or otherwise of the claim of amnesia and not on the issues raised by the prosecution case which would also result in unfairness. The accused would in a sense, be at the mercy of the purported strength of the prosecution case which could not be effectively challenged by a defence based upon a memory of events which may afford a complete answer to the charges. Without question the applicant would be disadvantaged in the preparation for, and at, his trial. In cases of this nature even a different version of events peripheral to those events which are the subject of the charges could lead to a lack of confidence in the reliability and accuracy of the evidence of the alleged victim so that proof beyond reasonable doubt could not be achieved.
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130
The submissions thus made in the Richards case are in essence the submissions advanced in TJD’s written submissions at par 50 – par 56.
131
Mullighan J concluded that nevertheless lack of memory on the part of an accused could not, in his Honour’s view, justify the extreme step of a permanent stay of a criminal proceeding particularly when it is in no way caused by, or associated with, any conduct on the part of the police or the prosecuting authorities:
Loss of memory by ‘a sane and otherwise normal’ person has never been regarded as a basis of a plea in bar to a criminal charge: Russell v HM Advocate approved in R v Podola (1960) 1 QB 325 355.
132
His Honour’s researches, and those of counsel, failed to find any case where a prosecution has been stayed because of a perception that an accused person may not have a fair trial due to his own deliberate act.
133
I accept that a deliberate self-inflicted injury would not, because of that fact, preclude a court, in an appropriate case, from concluding that he is unfit to stand trial.
134
His Honour continued that the criminal courts frequently encounter situations where accused persons cannot remember the circumstances of alleged criminal activity due to self-induced intoxication. An accused could be injured in a road accident whilst fleeing the scene of the crime and suffer brain damage with resultant amnesia. Loss of memory per se has never been regarded as an obstacle to a fair trial in the relevant sense.
Subsequent cases
135
I am unaware of any subsequent decision of an intermediate appellate court which casts any doubt upon this stream of authority. To the contrary the observations I have referred to have been applied in a number of subsequent cases. Most recently, in R v W, R [2019] SASCFC 33.
136
In R v Sutherland Refshauge J had regard to s 311 of the Crimes Act (ACT). I note that s 311(2) provides that a person is not unfit to plead only because a person is suffering from memory loss. His Honour observed at [63] that s 311(2) clearly has its genesis in the common law view that lack of memory of an accused is not a sound basis for a finding of unfitness to plead.
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137
In R v W, R the South Australian Court of Criminal Appeal allowed a Crown appeal against a decision of the District Court of South Australia (SADC) where the SADC found the respondent was mentally unfit to stand trial. At [65] Stanley J (with whom Blue and Lovell JJ agreed) noted that the fact of an impaired memory is not necessarily sufficient to prove unfitness to stand trial, citing Mailes which in turn had cited Drummond.
Overall conclusion
138
I conclude that even if TJD exhibited retrograde amnesia to the extent contended for by Dr Hargate, which I do not accept, he would still not have established that he is unfit to stand trial. I am not satisfied on the balance of probabilities that TJD is mentally unfit to stand trial for these offences.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MW
Associate to Judge Troy
13 DECEMBER 2019