R v Ronald Edward Medich (No. 40)

In the course of the cross-examination of the Crown's principal witness Fortunato Gattellari (“Fortunato”), questions were put to him in which it was effectively alleged that he had stolen moneys from the accused over a period of time, some of which he had given to his brother, Rocky Gattellari (“Rocky”). As a consequence, senior counsel for the accused asked the Crown to call Rocky, and make him available for cross-examination. The Crown's position was that Rocky was not competent due to the fact that he suffers from Alzheimer's disease and that accordingly, he would not be called. In doing so, the Crown made it clear that that was the only factor which caused it to take that position and that if Rocky were found to be competent, he would be called to give evidence.

It is in those circumstances that I have been asked to determine the issue of Rocky’s competence to give evidence. In relation to that issue, the following documents were tendered:

Before I come to the report of Dr Pulman, it is appropriate to summarise the balance of the evidence before me.

Exhibit E, which is the statement of Det Sgt Howe of 10 July 2017, records that on 4 July 2017 he contacted Rocky by telephone and spoke briefly with him, requesting to meet him with a view to obtaining a statement. Det Sgt Howe explained to Rocky at that time that he was making inquiries into a property that he once owned which was located on the Central Coast of New South Wales. It had been suggested to Fortunato in cross-examination that he stole moneys from the accused and provided them to Rocky for purposes associated with that property.

On that occasion, Rocky said to Det Sgt Howe:

On 16 January 2018 Dr Karen Ryan, a General Practitioner at Coogee, issued a certificate in which she stated Rocky was a well-known patient of hers and that there had been “considerable concerns” over his memory for the past several years. She went on to state:

I mean no disrespect whatsoever to Dr Ryan when I say that for the purposes of determining the current issue, her certificate (Exhibit C) is of limited weight.

Exhibit D, the statement of Det Sgt Howe of 20 March 2018, records that on the morning of 16 January 2018 (being the date of Dr Ryan’s certificate) he met with Rocky, at which time concerns were expressed by Rocky’s daughter regarding his memory and mental capacity. Rocky’s daughter indicated that she would take him to a General Practitioner for advice in relation to his capacity to appear as a witness in court. It is obvious that it was following that conversation that Dr Ryan was consulted and the certificate (Exhibit C) issued.

Exhibit D records that Det. Sgt Howe met with Rocky and his daughter early in the afternoon of 16 January 2018. Detective Howe stated that in the course of his conversation with Rocky he observed him “to appear confused and have a poor memory of events”. In particular, Det Sgt Howe noted the following:

I am prepared to accept that those were Det Sgt Howe's general observations, although I accept the submission of senior counsel for the accused that they cannot be elevated to a medical opinion.

Against that background, the Crown obtained a report from Dr Pulman, which is exhibit A. The opening paragraph of that report is material for present purposes and is in the following terms:

The letter of instructions to which Dr Pulman referred was not tendered before me. However, the terms of those instructions can obviously be inferred from the above extract from Dr Pulman’s report. The references in those instructions to "memory problems", and whether Rocky is "fit to give evidence", are somewhat nebulous. As I observed in the course of the hearing of this application, Dr Pulman was not asked the correct question(s) when she was given instructions. She should have been asked to express her opinion by reference to the provisions of s 13 of the Evidence Act 1995 (NSW) (“the Act”), to which I will return.

In her report, Dr Pulman recorded (at p 4) part of the history provided by Rocky regarding his cognitive functioning. She stated, amongst other things, that he had described his memory as "not as good as it used to be", as a result of which she formed the view that Rocky "did not appear to have insight into the extent of his memory difficulties.”

At p 5 of her report Dr Pulman outlined the nature Alzheimer's disease in the following terms:

Given Rocky’s history of amateur and professional boxing, Dr Pulman also stated (at p 5):

In terms of her cognitive assessment of Rocky, Dr Pulman reported (at p 6) as follows:

In expressing her clinical opinion, Dr Pulman stated (at p 7):

In her oral evidence, Dr Pulman was asked by the Crown (commencing at T2538.24 to 2539.10):

She was then asked (commencing at T2540.10):

She was then asked (commencing at T2540.41)

She was then asked (commencing at T2543.1):

She was then asked (commencing at T2543.1):

She was then asked (commencing at T2544.30):

Finally she was asked (commencing at T2544.42):

In answer to a question from me (at T2545.19) Dr Pulman confirmed that her opinions had concentrated upon Rocky’s memory, because that was what she had been asked to do. She also confirmed (at T2546.4 to 2546.22) that Rocky would have no difficulty reading a document, and would have no difficulty understanding what he had read. The only qualification which she placed on his capacities in those respects was the possibility that a difficulty might arise in the case of a "long document", in the sense that he may have difficulty remembering the contents of (for example) the first page of such a document by the time that he had reached the end of it. What Dr Pulman meant by the term “long document” was not explored.

In circumstances where there is a possibility that if called, Rocky will wish to avail himself of the provisions of s 128 of the Act, I outlined to Dr Pulman what he would be told by me in the event that such circumstances arose (commencing at T2549.47). Dr Pulman expressed the general view that Rocky may have the capacity to understand those matters, but that she could not be certain that he would. However, she did agree that if the various propositions were broken down, there was a greater chance of Rocky being able to understand them.

At this point it is convenient to set out two provisions of the Act which bear upon the current determination. Firstly, s 12 is in the following terms:

Secondly, s 13 is in the following terms.

For present purposes, the Crown relied on the provisions of s 13(1)(b) and submitted that the evidence supported a conclusion that Rocky did not have the capacity to give an answer which could be understood to any question that he was asked. In support of that proposition, the Crown relied primarily on the opinions of Dr Pulman, although the Crown also submitted that the observations of Det Sgt Howe were also of significance. In my view, and once again without intending any disrespect whatsoever to Det Sgt Howe, those observations are of limited weight in all of the circumstances.

Senior counsel for the accused initially submitted that in circumstances where the Crown had raised the issue of competence, the onus was on the Crown to establish that Rocky was not competent. It was submitted that on the entirety of the evidence, bearing in mind the Crown's reliance on s 13(1)(b), there was no suggestion that Rocky could not give answers which were capable of being understood. It was submitted that the mere fact that Dr Pulman had formed a view that some of his answers might be unreliable did not lead to a conclusion that s 13(1)(b) was engaged, or that Rocky was not competent to give evidence as the consequence of the operation of the that section.

There is no reason not to accept the opinion of Dr Pulman that Rocky presented to her with symptoms which were typical of, and consistent with, a pre-clinical presentation of Alzheimer's dementia. Dr Pulman is eminently qualified to express that opinion, and there is no opinion to the contrary.

However, that does not determine the issue. I am unable to accept Dr Pulman's opinion that Rocky is "unfit to give evidence as a witness in court proceedings". That is an opinion expressed in terms which are inapposite to the issue I am asked to determine. In making that observation I intend no criticism whatsoever of Dr Pulman. The fact is that she expressed her opinion in those terms as a result of being given instructions which did not properly address the issue. Dr Pulman should have been asked whether, in her opinion, Rocky is competent to give evidence, having regard to the provisions of s 13.

Contrary to what was initially put on behalf of the accused, neither party bears an onus to establish that Rocky is or is not competent. The issue is one for determination by the court, on the balance of probabilities. In RA v R [2007] NSWCCA 251; (2007) 175 A Crim R 221 Harrison J (with whom McClellan CJ at CL and Howie J agreed) said (at [11]):

I interpolate that at the time of his Honour's judgment, s 13 was expressed in different terms than is presently the case. The inquiry which was then contemplated by subs (7) is now contemplated by subs (8). However his Honour's observations as to the onus of proof remain applicable.

I am unable to accept the Crown's submission that the opinions of Dr Pulman support a conclusion that Rocky does not have the capacity to give an answer that can be understood to a question about a fact. Dr Pulman’s report is silent as to that issue, and her oral evidence (particularly that set out at [20] above) tends to the contrary. It is evident that Dr Pulman's report focused upon the reliability of answers which Rocky might give, rather than his capacity to understand, and appropriately respond to, questions he might be asked. It is the latter issue to which s 13 is directed. Those passages of Dr Pulman's evidence set out above tend, in my view, to confuse a person's capacity to understand a question on the one hand, with the reliability of any answer which might be given to any such question on the other. If a witness is found to be competent, whether the evidence is or is not reliable remains a question for the jury, not an expert witness. That does not change in the present context: R v Sed (2005) Cr App R 4; [2004] EWCA Crim 1294 at [16].

The importance of distinguishing these concepts was emphasised in DPP v R [2007] EWHC 1842 (Admin) where a not dissimilar issue arose in the context of evidence given by a young girl. Hughes LJ made the following observations which, in my view, are of particular significance to the present case (at [21]–[22]):

The case of R v Powell [2006] EWCA Crim 3 to which his Lordship referred involved a child of only three years of age who participated in an interview with police which was admitted into evidence. Once cross-examined, it became apparent that the child was not able to give answers that could be understood. This situation is quite different from the present case.

For these reasons I am satisfied that Rocky is competent to give evidence before the jury in the accused’s trial.