Director of Public Prosecutions v Rossiter (No 4)
[2025] ACTSC 212
•22 May 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Rossiter (No 4) |
Citation: | [2025] ACTSC 212 |
Hearing Date: | 25 February 2025 |
Decision Date: | 22 May 2025 |
Before: | Burns AJ |
Decision: | (1) I find the accused is unfit to plead. (2) I find the accused is unlikely to become fit to plead in the next 12 months. (3) I find the accused is incapable of making an election pursuant to s 316(2)(b)(ii) of the Crimes Act 1900 (ACT) and there is no guardian who has the power to notify the Court under s 316(2)(b)(ii). (4) I direct the ACAT to appoint a guardian with power to notify the Court under s 316(2)(b)(ii) of the Crimes Act 1900 (ACT), before the Court first fixes a date for the hearing, if the guardian is of the opinion that it is in the best interest of the accused for the special hearing to be a trial by a single judge without a jury. (5) List the matter before the Registrar on Wednesday, 28 May 2025 at 9:00am for directions. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment –Fitness to plead – investigation into the fitness of the applicant – Presser criteria – capacity to follow the course of the proceeding – capacity to provide instructions to lawyers – extreme age – applicant not fit to plead |
Legislation Cited: | Crimes Act 1900 (ACT) ss 311, 312, 314(3), 315A, 316, Div 13.2 |
Cases Cited: | Decision Restricted [2025] ACTCA 3 |
Parties: | Director of Public Prosecutions (Crown) John Henery Rossiter (Accused) |
Representation: | Counsel S Saikal-Skea (DPP) S Baker-Goldsmith (Accused) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT (Accused) | |
File Numbers: | SCC 124 of 2024 |
BURNS AJ:
Introduction
1․The accused is charged on indictment with three counts of indecent assault (CC2023/9668; CC2023/9669; CC2023/9671), one count of carnal knowledge (CC2023/7328) and one count of persistent sexual abuse (CC2023/12039). The charges all allege offending in the period between 1 December 1970 and 1 December 1982. All of the charges allege offences against the provisions of the Crimes Act 1900 (ACT) as they were at the time of the alleged offending.
2․The complainant is the accused’s daughter. She was born in 1966, meaning that she was aged between 3 or 4 years old and 15 or 16 years old during the period covered by the charges. She is now 58 or 59 years old.
3․The accused was born in April 1928. He is now 97 years old. During the period covered by the charges he was between 42 and 54 years old.
4․The subsequent years have been both kind and unkind to the accused. Kind, in that he is still alive. Unkind, in that he now suffers from dementia, hearing loss, depression, type 2 diabetes, insomnia, hypertension, osteoarthritis of the spine and postherpetic neuralgia. At the time that the decision was made to proceed with these charges, the accused was living in supported accommodation in Queensland.
5․The accused was due to stand trial on these charges commencing 3 February 2025. The matter had originally been listed in November 2024 for hearing of an application by the Director of Public Prosecutions (DPP) to lead tendency evidence at the accused’s trial, but I understand that application did not proceed. Shortly before the tendency application was listed to proceed, the lawyers for the accused obtained a report from Dr Luke Hatzipetrou, a forensic psychologist practising in Queensland. Doctor Hatzipetrou expressed the opinion in his report that the accused “appears to be unfit for trial within the definition of Section 311.”
6․The statutory provision Dr Hatzipetrou referred to is clearly s 311 of the Crimes Act 1900 (ACT) (the Act) which is in the following terms:
311 When a person is unfit to plead
(1)A person is unfit to plead to a charge if the person's mental processes are disordered or impaired to the extent that the person cannot—
(a)understand the nature of the charge; or
(b)enter a plea to the charge and exercise the right to challenge jurors or the jury; or
(c)understand that the proceeding is an inquiry about whether the person committed the offence; or
(d)follow the course of the proceeding; or
(e)understand the substantial effect of any evidence that may be given in support of the prosecution; or
(f)give instructions to the person's lawyer.
(2)A person is not unfit to plead only because the person is suffering from memory loss.
7․On 16 December 2024, McCallum CJ determined that there was a real and substantial question about the accused’s fitness to plead. This reflects the provisions of s 314(3) of the Act which requires the Court to reserve for investigation under Div 13.2 of the Act the question of an accused’s fitness to plead where the Court is satisfied that there is a “real and substantial” question of their fitness to plead.
8․The procedure for conducting an investigation into an accused’s fitness to plead is found in s 315A of the Act. This provides:
315A Investigation into fitness to plead
(1)On an investigation into a defendant's fitness to plead—
(a)the court must hear any relevant evidence and submissions put to the court by the prosecution or the defence; and
(b)if the court considers that it is in the interests of justice to do so, the court may—
(i) call evidence on its own initiative; or
(ii) require the defendant to be examined by a psychiatrist or other health practitioner; or
(iii) require the results of the examination to be put before the court.
(2)Before hearing any evidence or submissions, the court must consider whether, for the protection of the defendant's privacy, the court should be closed to the public while all or part of the evidence or submissions are heard.
(3)The court must decide whether the defendant is unfit to plead.
(4)If the court finds that the defendant is unfit to plead, the court must also decide whether the defendant is likely to become fit to plead within the next 12 months.
9․Given the anxiety of the DPP to maintain the listed date for trial (3 February 2025 at that time) the investigation into the accused’s fitness to plead was listed to proceed on 28 January 2025. It did not proceed on that date.
10․The accused did not appear on 3 February 2025 for his trial. His lawyers informed the Court that the accused had instructed them that he would not attend. The accused’s counsel, an experienced junior counsel, indicated that she had not taken instructions from the accused about the charges because she understood him to be unfit to plead, or at least that there was “an exceptionally live question” about his fitness to plead.
11․McCallum CJ issued a warrant for the arrest of the accused. He was subsequently arrested in Queensland and extradited to the Australian Capital Territory (ACT). He has remained in custody since that time.
12․On 25 February 2025 I conducted the investigation into the accused’s fitness to plead. There is a statutory presumption that a person is fit to plead which is only displaced where the Court is satisfied on the balance of probabilities after an investigation under the Act that they are unfit to plead: s 312 of the Act. The evidence before me on the investigation consisted of:
(a)Evidence of Dr Hatzipetrou;
(b)Affidavits sworn by Nathan Douglas Deakes on 20 August 2024, 23 January 2025 and 24 February 2025.
13․I will set out the evidence relevant to the investigation.
Evidence of Dr Hatzipetrou
14․Doctor Hatzipetrou provided a written report dated 24 November 2024 (subsequent copies of the identical report have later dates on them, but nothing turns on this fact). He also gave some oral evidence and was cross-examined on 25 February 2025. I will initially address the written report.
15․The report notes that concerns had been reported by the accused’s son, Mr Peter Rossiter, regarding the accused’s capacity to participate in court proceedings. In addition to observations of the accused’s behaviour when the present charges were before the Magistrates Court, Dr Hatzipetrou noted that the accused had been admitted to the Logan Hospital in August 2024 where he was diagnosed with and treated for delirium. Dr Hatzipetrou was told by Mr Peter Rossiter that during that hospital admission the accused had said that the current criminal charges had been resolved by the prosecution withdrawing the charges. That, of course, was not accurate.
16․The accused participated in clinical interviews and assessments undertaken at his residence in Queensland on 14 and 21 October 2024. In addition, he participated in a telephone conference with Dr Hatzipetrou on 14 November 2024. To assist in the preparation of his report, Dr Hatzipetrou reviewed the following material:
(a)A copy of R v Monaghan (No 2) [2011] ACTSC 62 regarding s 311.
(b)A copy of s 311 of the Act.
(c)A copy of medical files provided by Logan Hospital.
(d)A copy of the indictment.
(e)A copy of the transcript of an interview of the accused by police dated 19 January 2023.
(f)A copy of correspondence from Dr Weeratunga, acute care of elderly, Logan Hospital, dated 20 August 2024.
(g)A copy of file notes provided by Logan Hospital.
(h)A copy of a letter of instruction from Mr Deakes dated 8 October 2024.
(i)A copy of Schedule 1 Expert Witness Code of Conduct.
(j)A copy of the accused’s criminal history in Queensland.
(k)A copy of file notes from the consultant liaison psychiatry, Logan Hospital.
(l)A copy of the Case Statement.
17․Doctor Hatzipetrou took a social history from the accused, some of which did not accord with the employment history which was provided by the accused. In the course of providing his social history, the accused “stated he could not recall ‘what (he) had just said’ and revealed he had been recently discharged from hospital.”
18․The accused told Dr Hatzipetrou that he left school at the age of 14 years 8 months. When pressed about his schooling, the accused “claimed to be ‘put up in another class’ as he was ‘a bit different’.” However, the accused “later stated he had been held back a year for reasons unknown to [him].”
19․The accused provided Dr Hatzipetrou with a vocational history. The accused stated that he was in the Australian Army in various roles, including as a driver. The accused deviated from the area of questioning and began to focus on his repeated absences from his home at that time. Importantly, Dr Hatzipetrou said the accused:
[D]id not respond to prompts to return to question regarding his employment history, rather continued to focus on his absence from the home and his established friendships and sexual interests.
Doctor Hatzipetrou was able to elicit from the accused that in addition to having been in the Army, the accused also worked in laboratories as a cleaner and undertook training to become a technician. The accused also revealed having undertaken some training as a mechanic.
20․Doctor Hatzipetrou stated that the accused’s “account of his employment history was disjointed and at times, overly focused on discrete incidents as he was unable to provide a chronological order of his work history.”
21․The accused told Dr Hatzipetrou that he had been adopted by the Rossiter family. He described a difficult childhood marred by strained relationships with his adoptive parents. He stated that he had been subject to physical punishment by his adoptive parents. He had few friends either as a child or adult. At the time of Dr Hatzipetrou’s assessment, the accused was living in a “small cluster of units which are supervised by a manager and her family.” Third parties provided him with meals, assisted him with appointments and checked on his wellbeing.
22․Doctor Hatzipetrou stated that available medical file notes confirmed that the accused had been admitted to the Logan Hospital for delirium. The accused “was found to have urinary retention and notably, was referred to the consultation liaison psychiatric service given the reported suicidal ideation and subacute visual hallucinations.” The accused “had previous suicide attempts resulting in reported admissions to the former Wolston Park Hospital” and was treated with an antidepressant.
23․A registered nurse who observed the accused at that time assessed him as “thought disordered” and “easily derailed in conversation”. The nurse “experienced difficulties undertaking a mental state examination due to [the accused’s] avoidant behaviours and also noted the effects of the delirium.”
24․The registered nurse contacted Mr Peter Rossiter who expressed concerns about the accused’s “cognitive decline, referring to changes in his presentation such as irritability and aggression and experiencing difficulties in comprehension and memory.” Mr Peter Rossiter told the registered nurse that the accused “became overwhelmed and confused in conversations which contrasted with his abilities in the past twelve months.”
25․At the time of his discharge from the Logan Hospital, the accused, “was considered to have a primary diagnosis of delirium, unspecified and a secondary diagnosis of suicidal ideation.” Documents revealed that the accused “had a history of physical aggression towards nursing staff and exhibited confusion and disorientation, was dismissive” and “considered a ‘high vulnerability’ due to his age, current mental state and ‘confrontational mannerisms’.”
26․Doctor Hatzipetrou took a history of the accused’s medical conditions. Despite being prescribed medication, the accused told Dr Hatzipetrou that he has “ongoing pain in his shoulders and arms”. This caused problems with sleeping. The accused also “referred to chronic back pain which also restricts his mobility and movement.”
27․The accused told Dr Hatzipetrou that he had suffered previous falls, and Dr Hatzipetrou noted that he had not revealed those accidents to others but had:
[D]escribed symptoms such as headaches and dizziness. In addition, he reportedly underwent surgery on his gall bladder and appendix approximately ten years ago. In addition, he had an operation on bilateral hernias.
The accused claimed that he had undergone surgery on his spine approximately seven years ago. An assessment of the accused’s hearing in October 2023 revealed that the accused “had a moderate to profound sensory neural hearing loss in the right ear and a mild to profound sensory neural hearing loss in the left ear.”
28․While the accused “denied misuse of alcohol”, he also acknowledged drinking “a carton of cask wine and ingest[ing] antidepressants.” The accused stated that “his alcohol consumption had largely decreased in the past few years.” The accused “claimed that ‘one cask of wine would now last one month’.” Doctor Hatzipetrou noted that despite these recollections, the accused did not have any cask wine in his home and could not recall the recent consumption of cask wine.
29․Doctor Hatzipetrou noted that the accused had been subject to a brief cognitive screening undertaken by a general practitioner in November 2023. A number of tests were administered. Doctor Hatzipetrou noted that the overall result suggested that the accused has “demonstrated deterioration across a range of functions reflective of dementia.”
30․Doctor Hatzipetrou conducted his own mental state examination. To this end, the accused was interviewed at his unit in Queensland on two occasions. On the first occasion, it took 25 minutes of knocking on the door of the accused for the accused to respond. The accused expressed unawareness of the interview although Dr Hatzipetrou “had been informed that the appointment had been confirmed with him.”
31․The accused “was dressed in long trousers and a white shirt that had been crumpled and stained.” He “was unaware of the time of day”, stating “he ‘guessed’ it was morning.” The accused offered Dr Hatzipetrou a cup of tea. For a period of 40 minutes after this offer, Dr Hatzipetrou observed the accused attempting to prepare a cup of tea before stopping, having forgotten the intended task. The accused then “retreated to his bedroom without explanation.” Five minutes later, the accused “returned, stating that he did not have breakfast and … [then] prepared a cup of tea.”
32․Doctor Hatzipetrou stated that the accused’s “expressive and receptive language skills appeared to be mildly impaired.” The accused “demonstrated wordfinding difficulties.” The accused’s “hearing impairment contributed to difficulties with [their] discussions”, and the accused would often ask that information be repeated.
33․The accused was unable to recall Dr Hatzipetrou’s name within the first 30 minutes of the interview. When reminded, the accused was again unable to recall Dr Hatzipetrou’s name after 60 minutes. The accused confirmed that he had forgotten Dr Hatzipetrou’s name after two hours and at the end of the appointment. Doctor Hatzipetrou noted that the accused “claimed he could recall [his] name at the end of the second interview which was conducted one week later.”
34․Doctor Hatzipetrou stated that the accused:
[D]emonstrated impairments in attention and concentration throughout the course of the respective interviews. Initially, he appeared to maintain attention and respond to questions.
Doctor Hatzipetrou’s initial impression was that the accused “had the ability to listen and respond to a question, however he was unable to sustain mental focus.” The accused:
[D]emonstrated derailed thought and remained fixated on a somewhat unrelated issue. Given his hearing impairment, [the accused] was non-responsive to prompts and cues to return to the original question.
The accused “would continue to engage in a monologue about a particular issue.”
35․Doctor Hatzipetrou stated that:
Throughout the course of the two interviews, [the accused] was unable to maintain a train of thought and was easily distracted. There was evidence of this cognitive inflexibility that contributes to the fixation. Furthermore, [the accused] would furnish a response to a question and then refer to a historical event in extreme detail yet stop talking and reveal he had forgotten the intended response. As such, there had been evidence of this thought stopping and … confusion and inability to recall the preceding statement.
36․At one point, the accused gave a history of being given a chicken meal from a friend and placing it on his table. The accused stated that he had “forgotten about this meal for three days” saying that “he did not see the container’ on the table”, despite the table being “located in the centre of the small unit.” The accused said that this was “a source of stress” to him as he recognised problems with his memory. This incident was confirmed by Mr Peter Rossiter.
37․In the course of his assessments of the accused, Dr Hatzipetrou noted that “[t]here was no evidence of a formal thought disorder or clear evidence of delusions or overvalued ideas.” The accused “denied perceptual disturbances such as auditory hallucinations.”
38․During the assessments, the accused’s “mood appeared depressed, and his affect was flat.” The accused “referred to persistent ruminations”, particularly around his legal issues. The accused “referred to associated feelings of anxiety resulting in feelings of panic.” He had “fleeting” moments of suicidal ideation and “[w]hen pressed, [the accused] confirmed periods of confusion and uncertainty that are associated with forgetfulness and mild disorientation.” Doctor Hatzipetrou observed that the accused experienced difficulties in “recalling names of people known to him, in particular family members.” The accused “acknowledged that he had difficulty identifying the names of objects.”
39․Dr Hatzipetrou stated that the accused presented “with signs and symptoms consistent with a persistent depressive disorder”. Additionally, there were “associated symptoms of anxiety, panic, and suicidal ideation.” Further, the accused “presented with cognitive and behavioural features of a neurocognitive disorder” consistent with dementia. Based upon the information available to Dr Hatzipetrou he believed the accused had suffered a “decline in cognitive and memory functioning” over the preceding 18 months. Doctor Hatzipetrou expressed the opinion that the accused’s presentation could not be solely accounted for by his age and hearing impairment but was the result of a neurocognitive disorder.
40․With regard to the charges currently before this Court, the accused told Dr Hatzipetrou that he had participated in an interview with police and was honest in that interview and told the police everything. The accused stated that he had seen the brief of evidence, which was supposed to be 18 pages long, but he had only been given 14 pages. The accused stated that the brief contained lies. The accused vehemently denied committing the offences. The accused stated that he believed the complainant had targeted him as she was resentful.
41․The accused told Dr Hatzipetrou that he had informed police of an occasion in the complainant’s early childhood when she entered the bedroom of the accused and his wife while they were in bed and lay on his arm, resulting in a touch to her “mons”. The accused stated that the complainant was prepubescent. He stated that he “pulled his arm away”.
42․The accused had previously been arraigned via video link from the Courthouse at Beenleigh in Queensland and stated that when asked to enter a plea his son, Mr Peter Rossiter, has shown him a card with the words “not guilty” on it. The accused confirmed that he had told Peter Rossiter that he was pleading not guilty. The accused stated that he had been prepared to enter a guilty plea to the incident that he had revealed to police.
43․Doctor Hatzipetrou was satisfied that the accused “was aware of the concept of a plea and reiterated his dispute of the allegations and his plea of not guilty.” When asked about the role of the jury, the accused stated that “they are supposed to have open minds and look at the evidence that is presented.” The accused was able to express that “the jury finds the person is guilty or not guilty.” The accused was also able to express that the judge decides what punishment should be imposed.
44․Doctor Hatzipetrou engaged in a discussion with the accused about the role of the prosecutor. He said that “the questioning regarding the role of the prosecutor was at times laboured and disjointed as [the accused] experienced difficulties maintaining his focus in the discussion” and “became fixated” on the topic of evidence. When asked about the defence lawyers’ role, the accused said, “seeing everybody was doing the right thing”.
45․Doctor Hatzipetrou opined that the accused “exhibited evidence of paranoia and suspiciousness about the court processes.” The accused “was unable to articulate the process to inform his lawyer if he identified that a witness was telling lies in court.” The accused “was unable to reliably differentiate between relevant and irrelevant information that could assist in instructing counsel.”
46․The accused “expressed concerns about his hearing impairment”. Doctor Hatzipetrou stated that he would write down questions and allow the accused to read the question, however the accused presented with “slow processing of information” and “there would be a marked delay in response.” While processing a question, the accused “would engage in tangential topics and forget the question.” Doctor Hatzipetrou observed the utilisation of both orally spoken questions and also written questions led to the accused feeling overwhelmed, frustrated and distracted and engaging in tangential discussions.
47․Doctor Hatzipetrou stated that, based on observations, the accused’s “level of engagement diminished during the semi-structured interview” process and there was “evidence of decreased attention and focus and … of mental fatigue.”
48․Under the heading “Opinion”, Dr Hatzipetrou stated:
Mr Rossiter had exhibited persistent difficulties sustaining attention and concentration over the course of a clinical interview. Whilst accounting for the effects of his severe hearing impairment and his chronological age, Mr Rossiter’s observed impairments in working memory, which includes attention and mental focus, appeared to be attributed to a cognitive impairment. Likewise, Mr Rossiter was unable to maintain a train of thought and would often forget what he had stated and/or the initial question. Likewise, Mr Rossiter was easily overwhelmed by questions resulting in irritability and frustration. Moreover, he was unable to recall the initial question, and would ask the author to repeat. With repetition, Mr Rossiter would attempt to answer the question and then there were derailed thoughts.
Notably, his ability to sustain his attention and process information was impaired. As a consequence, Mr Rossiter would often stop and was unable to recall his response. At times, he would then fixate on another issue or topic.
…
On the balance of observations, findings and the collateral report from Mr Peter Rossiter, there had been evidence of cognitive and memory decline as well as changes in behavioural functioning consistent with a neurocognitive disorder, dementia type. Mr Rossiter is clinical presentation is complex given the recent onset of delirium and long-standing history of depression.
49․Later in the report, Dr Hatzipetrou noted that the accused did not appear to understand the seriousness of the charges against him. The accused had relied heavily on his son in the earlier Court proceedings by audiovisual link (AVL). During that earlier proceeding, the accused “was reportedly highly anxious and confused” and “was unable to effectively communicate” when he required assistance. When in Logan Hospital, the accused had told Mr Peter Rossiter that the charges against him had been withdrawn, when that was clearly not the case.
50․After referring to these matters, Dr Hatzipetrou said:
For an individual to participate in a trial, there are several important cognitive functions which must include auditory and immediate memory, information processing, verbal comprehension as well as aspects of executive functioning which include organisation and planning abilities. Coupled with the observations and collateral information, the current assessment revealed evidence of these cognitive impairments indicative of dementia.
On the balance of the findings, Mr Rossiter would be markedly disadvantaged in trial proceedings as he would be unable to follow the course of a trial and as such, his ability to encode, store and then retrieve relevant information to form a defence and/or instruct counsel would be significantly impaired. As evidenced in the interviews, Mr Rossiter loses track of thought and forgets what he has actually stated and more so, the initial question. When confronted with legal arguments, Mr Rossiter does not appear to have the requisite cognitive and memory capacities to participate in court proceedings. Furthermore, he would experience marked difficulties providing reliable and coherent instructions to his counsel in a timely manner.
…
On the balance of probabilities, Mr Rossiter appears to be unfit for trial within the definition of Section 311. Importantly, the implementation of accommodation such as frequent intervals, modification of language and concepts is unlikely to bridge the chasm between Mr Rossiter’s abilities and the required capacities to partake in court proceedings without a significant disadvantage and/or distress.
51․Doctor Hatzipetrou gave further brief evidence on 25 February 2025 and was then cross-examined. Of significance, Dr Hatzipetrou was taken to the affidavit of Nathan Deakes affirmed on 24 January 2025 (see below). Doctor Hatzipetrou expressed the opinion that the contents of this affidavit reinforced his opinion expressed in his report of November 2024 and highlighted that the accused may be experiencing further decline in his mental capacity. Doctor Hatzipetrou noted that Mr Deakes had asked the accused on at least four occasions about his pleas to the charges, and the accused did not provide an answer. Doctor Hatzipetrou said:
When I saw him, he was able to sort of discriminate between guilty – between guilty and not guilty. I see here that he couldn’t explain that to Mr Deakes on that occasion, which is a change.
52․In cross-examination Dr Hatzipetrou said that his understanding of what the accused would be required to do in order to follow the proceedings was that the accused would be required to:
(a)attend the trial;
(b)listen to the evidence and make sense of it;
(c)instruct his lawyers; and
(d)give evidence should he choose to do so.
53․Doctor Hatzipetrou agreed that the accused could not do those things, “even to a minimum standard”. Based upon his interactions with the accused, Dr Hatzipetrou stated that there was clear evidence of slow information processing, resulting in the accused being overwhelmed and frustrated while trying to follow events around him. This leads to the accused not understanding what is relevant and what is not. In addition, the accused struggles to maintain focus for any period of time. In a court setting, this is exacerbated and not only does he struggle with his cognitive impairment, but there will also be an increased state of anxiety.
54․Doctor Hatzipetrou was aware that the Court could make accommodations to assist the accused, such as taking breaks et cetera, but he believed that the “chasm” between the accused’s abilities and what is expected during court would be far too great even with such accommodations.
55․In answer to a question from myself, Dr Hatzipetrou expressed the opinion that the accused does not have the capacity to self-identify when he is being swamped by information and to convey that fact to his lawyers.
56․Doctor Hatzipetrou was asked to assume that the accused’s hearing problems were as well-managed as they could be, and that the evidence of the complainant had been video recorded in a recording lasting two and a half hours. Doctor Hatzipetrou was asked whether accommodations such as sitting with his lawyers prior to the trial and watching the video slowly would positively impact his ability to follow the proceedings. Doctor Hatzipetrou said that he did not believe that would be the case as the accused would need to not only review the video recording very slowly but would also then need to retain the information throughout the two and a half hours video. It was more than likely that by the end of the process the accused would not be able to recall instructions that he had given earlier in the process.
57․Doctor Hatzipetrou agreed that in his dealings with the accused, the accused had always maintained that the allegations against him were lies, which was his defence. Doctor Hatzipetrou accepted that the accused had a general understanding of the allegations against him, but not necessarily a good understanding.
58․Doctor Hatzipetrou was not entirely confident that the accused, even to a minimum standard, understood the substantial effect of the evidence which the prosecution proposed leading at his trial. In that regard, the accused tended to overlook the allegations made by the complainant and to focus on statements made by his other son, Steven Rossiter, in his statement. The accused was not able to form any defence other than a denial.
59․Doctor Hatzipetrou agreed that the accused had been able to provide information regarding possible motives for the complainant to have lied.
60․In re-examination I asked Dr Hatzipetrou whether, if circumstances arose during the course of the trial which might justify a discharge of the jury, the accused would be able to understand the arguments for or against such a course and to provide instructions to his lawyers. Doctor Hatzipetrou responded that the accused would need considerable education by his lawyers to understand the process and, even then, he did not think that the accused had the requisite cognitive abilities to understand the process.
Affidavits of Nathan Deakes
61․Mr Deakes is a lawyer employed in the Legal Aid Commission in the ACT. He was admitted as a lawyer of the Supreme Court of the ACT on 13 December 2013. In his first affidavit affirmed on 20 August 2024 Mr Deakes stated that he has had conduct of the accused’s matters since the accused was granted legal aid in late October 2023. Over the course of the period from the grant of legal aid to the date on which he affirmed his first affidavit, Mr Deakes had numerous conversations over the telephone with the accused. At that stage, he had not met the accused in person because the accused was living in Queensland.
62․As a result of conversations between Mr Deakes and of the accused, Mr Deakes expressed concern regarding the accused’s capacity to understand the advice that Mr Deakes was giving him.
63․Mr Deakes deposed to the fact that on 16 August 2024 his office received a telephone call from Mr Peter Rossiter informing that the accused had suffered a fall and hit his head. At that time the accused “was in hospital and incommunicable”. On 20 August 2024, Mr Deakes’ office received further information from Peter Rossiter indicating that the accused was still in hospital and that he moved “in an out of a semi-conscious state” and that the accused could not “delineate between what he was saying and the reality.” At the time of affirming the affidavit of 20 August 2024, Mr Deakes was unable to take instructions from the accused.
64․A second affidavit was affirmed by Mr Deakes on 23 January 2025. At that time, Mr Deakes was yet to meet the accused in person as the accused remained in Queensland. In his second affidavit, Mr Deakes deposes that he spoke to the accused before the accused was arraigned via video link on 3 July 2024. Mr Deakes quite properly informed the accused of how any clear discount may apply.
65․After McCallum CJ determined on 16 December 2024 that there was a real and substantial question which had been raised regarding the accused’s fitness to plead the matter was adjourned to Tuesday, 28 January 2025 for any additional evidence on the issue of the accused’s fitness to plead. Over the course of the week beginning 13 January 2025 Mr Deakes made multiple unsuccessful attempts to contact the accused by telephone.
66․On 21 January 2025, Mr Deakes was able to contact the accused by telephone and they had a conversation for about 30 minutes. During the conversation, Mr Deakes asked questions of a general and conversational nature as well as providing an update to the proceedings. Mr Deakes also asked questions around the ‘Presser criteria’ as set out in s 311 of the Act: R v Presser [1958] VR 45 (Presser), discussed further below.
67․One of the questions Mr Deakes asked was – if evidence was presented that the accused didn’t agree with during the trial, whether the accused believed he would be able to tell Mr Deakes that. The accused replied:
It frightens the hell out of me. I’ve been putting up with this for two years now but I’m not going to sit there as a patsy. If I was charged with fact, I’d accept it, but this is rubbish!
68․Mr Deakes deposed to the fact that in this conversation he asked questions of the accused “around the ability to challenge jurors, the trial process, some of the evidence that would be presented by the prosecution” and the need for the accused to give instructions to his lawyers during the trial. Mr Deakes went on to say:
At times, I became aware that Mr Rossiter was losing his train of thought whilst speaking as well as telling me various, totally unrelated stories on a tangent, not in line with the original question I had asked all the topic we were speaking about.
I found it difficult to keep Mr Rossiter’s train of thought focused to the issues that we were needing to discuss.
69․During the conversation, the accused stated that he felt that his “mental processes had deteriorated since August.” The accused stated that he “used to often fill his time enjoying completing puzzles in books but now he struggles to complete them.”
70․Mr Deakes asked the accused whether he maintained his pleas of not guilty, to which the accused replied “Stephen has given a horrific lie of what he saw. I am adamant that I am not going to put up with non-truths. Not guilty, not guilty.”
71․The third and final affidavit of Mr Deakes was affirmed on 24 February 2025. The contents of that affidavit were based on an attendance by Mr Deakes on the accused at the Alexander Maconochie Centre (AMC) in Canberra on 20 February 2025. Mr Deakes met with the accused for approximately 50 minutes. Mr Deakes “informed the accused that his son, Peter Rossiter, had organised an audio-visual link” to speak to the accused later that day, at 5:30 PM. The accused appeared to find that funny and laughed. The accused “stated that he receives his dinner early, about 3:30pm and that, ‘It’s a long night’.”
72․Notwithstanding being informed that Peter Rossiter had booked an audiovisual appointment with the accused that afternoon, the accused asked Mr Deakes "to pass on his banking PIN” to Peter Rossiter “to transfer money into his prison account.” The accused then said “I don’t need anything, I don’t need biscuits or anything, I’d rather starve. I need a razor and a decent cake of soap.”
73․The accused was able to tell Mr Deakes that the accused had been charged with “some sort of sex crime.” He was able to tell Mr Deakes that it was his daughter who had made the allegations. When asked if he could recall what plea he had entered to the charges, the accused said, “In view of the fact I don’t know what I am being charged with, how could I?” The accused then continued, “I think in the so-called brief there are two levels.” When asked what he meant by that, the accused responded:
Two charges. One 20 years and another 25 years. I heard Madame Black say ‘Gosh, she’s not persuaded’. People’s lives are at stake.
74․When asked again about his plea, the accused answered:
All true, the rest not real incidents. All the rest is just jargon, just lies. As best I can remember, the first charges are better, all very tricky and I’m not tricky. First charge based more or less that I had done anything and everything.
75․When asked again what plea he had entered to the charges, “[t]he accused spoke again about one charge being 25 years but that it seemed to be the wrong way around.” He then said, “[t]he law is a funny thing I’m finding out.” When asked if he recalled if he had entered a plea of guilty or not guilty to the charges, the accused responded, “[o]ut of principle of I’d say no. I’d have to go longer term.” When asked directly whether he knew what plea he had entered, “the accused answered ‘No’.”
76․When asked whether he could explain the difference between a pleading of not guilty and a plea of guilty, the accused responded “[n]o. I wouldn’t have a clue. All of this is over my head.”
77․When asked whether he felt confident that he could inform his lawyers that he wanted to challenge a potential juror, the accused responded, “[h]ow could I challenge when I don’t know them.” Mr Deakes attempted to explain the process of challenging jurors to the accused by telling him that when the person is randomly selected, he has a brief opportunity to look at the person and decide whether he would like this person to serve on the jury or to challenge the person. The accused laughed and said, “[i]f that’s the law!” The accused went on to say, “[i]n all honesty, regardless of what that means, I think I would prefer all male.”
78․When asked whether he felt he would be able to inform his lawyers of any challenge to the evidence, the accused responded, “[w]hat are you calling evidence? Those dreadful things she’s written?” The accused went on to say – in answer to a question whether he felt confident that he could inform his lawyer if he heard evidence in Court that was not true – “[a]ll things written are reprehensible. 99% is lies and in the past. Nothing but lies, unbelievable lies. I don’t know why she is doing this. It’s her nature.” The accused later said of the complainant “[i]f she opens her mouth … She’s committing perjury.”
79․At this point, the accused interrupted himself to inform Mr Deakes that following his bail applications on Monday, 17 February 2025 he remained in the Court cells for the entire afternoon and was not returned to the AMC until approximately 5:30pm. The accused then spoke generally about conditions in the AMC. Mr Deakes tried to bring the accused back to the questions relevant to the Presser criteria, but the accused began speaking about his hearing aids and that the “cells” were flat. Mr Deakes stated that the accused “then became somewhat fixated about being ‘old fashioned’ and his reference to batteries as ‘cells’.”
80․The accused then moved on to discussing his medication before speaking about his fascination with the AMC and how the cell doors operated. Knowing that the accused had a background in mechanical engineering, Mr Deakes said to the accused that this interest must be because of his “engineering brain”. This appeared to confuse the accused.
81․When asked how he would go about asking the complainant a question in the trial, to determine if the accused understood how to instruct counsel and his solicitors, Mr Deakes described the following:
The accused said: “There is one question I want to ask directly of [redacted]. Why [redacted]?” The accused then said “Stop!” and raised both of his hands, pausing as though thinking, before asking: "Why did Steven make his statement?'' I stated: "That is something we may be able to ask of him." I then asked again: "Do you know how to ask a question of a witness during a trial?" The accused answered: "Haven't got a clue."
82․The accused was able to state that if he didn’t understand anything that was going on in the trial, he would be able to ask his lawyers to explain.
83․When asked whether he had any questions for Mr Deakes, the accused responded that he did not, but went on to say, “[s]ometimes I feel that I somehow don’t have things together.”
84․In addition to setting out the terms of the above conversations, Mr Deakes made the following observations of the accused during this interview:
(a)the accused appeared, at times to be confused;
(b)at times he appeared flabbergasted and thought several of the questions that Mr Deakes asked were funny and humorous, notwithstanding their significant and serious undertone;
(c)at times the accused would start answering a question before losing his train of thought, stopping, and asking what they were talking about;
(d)Mr Deakes found it difficult to keep the accused’s thought focused on the issues that he was required to discuss. This occurred not only when asking specific questions, but during recounting of other events or accounts;
(e)at times the accused would begin to answer a question before going off on a tangential subject and topic. This necessitated Mr Deakes redirecting the accused back to the original question before receiving an answer.
85․Mr Deakes affirmed that he “truly and verily believed” that in the interview of 20 February 2025 “the accused had regressed in his understanding” predominantly of those criteria set out in s 311(1)(b) of the Act that he had demonstrated in previous interviews. Mr Deakes observed that in his prior dealings with the accused, the accused was adamant that he was not guilty and wanted to enter and maintain that plea. On this occasion, however, “the accused could not describe the difference between a plea of guilty and not guilty or (recollect) which plea he had previously entered.”
Findings on the accused’s mental capacities
86․I am satisfied on the balance of probabilities that the accused suffers from a neurocognitive disorder, dementia type. It is also probable that he suffers from a persistent depressive disorder. The main cognitive effects of those disorders are that the accused:
(a)Has persistent difficulty sustaining attention and concentration;
(b)Has observed impairments in working memory, which includes attention and mental focus;
(c)Is unable to maintain a train of thought and often forgets what he has previously said or what question has been asked of him;
(d)Has experienced cognitive and memory decline as well as changes in behavioural functioning;
(e)While having the capacity to recall some information provided to him, his ability to sustain attention and process information is impaired;
(f)Is easily overwhelmed with information resulting in irritability and frustration;
(g)Becomes highly anxious and confused
(h)Has deficits in important cognitive functions including auditory and immediate memory, information processing and verbal comprehension;
(i)Has deficits in executive functioning including organisation and planning ability; and
(j)Has slow information processing.
Principles to be applied
87․The terms of s 311 of the Act are derived from the judgment of Smith J in Presser: for a legislative history of s 311 see R v Bailiff (2010) 5 ACTLR 1 at [34] – [46]. In Presser, the accused was presented on a charge of murder but before pleading to the indictment material before the trial judge raised a question of the accused’s fitness to be tried. Section 426 of the Crimes Act 1928 (Vic) provided that if a person presented for an indictable offence were ‘insane’ and is upon arraignment so found by a jury lawfully empanelled for that purpose, so that the person cannot be tried upon such presentment, the trial judge might order that the person be kept in strict custody until the Governors pleasure were known.
88․Before empanelling a jury to determine the accused’s fitness to plead, and after hearing submissions by counsel, Smith J said at [48]:
The cases to my mind show clearly that the word “insane” in s426 does not mean “insane” in the colloquial sense. It means “of impaired mentality to such a degree as to be unfit to be tried”. Whether an accused man is insane in that sense is, of course, a very different question from the question whether he is insane in the colloquial sense. A mere lack of formal education, a mere lack of familiarity with court forms and procedures, would not, of course, render a man unfit to be tried, but he may, upon the test of fitness for the purposes of the section that has been laid down in the cases, be held unfit to be tried when he is far from being insane in the colloquial sense. Dixon J, as he then was, mentioned in Sinclair v R (1946), 73 CLR 316, that it does not seem to have been noticed by the text writers how high a degree of intelligence the test might demand if it were literally applied. But he is not there, in my view, suggesting that it should be applied in any extreme sense, or in any over-literal sense. It needs, I think, to be applied in a reasonable and commonsense fashion. And 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 enquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel no what is version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with any 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 with counsel, if any.
89․The early cases addressing the appropriate course to be adopted where an accused’s fitness to plead was raised examined the issue through the lens of ‘insanity’. Thus, in R v Pritchard (1836) 7 C & P 303; 173 ER 135 (Pritchard), the accused, who was “deaf and dumb”, was presented for trial on indictment alleging a capital felony: at [303]. The accused did not plead to the indictment and a jury was empanelled to determine whether the accused was mute “of malice” or “by visitation of God”: at [303]. The jury determined that the accused “was mute by visitation of God”: at [304]. There was evidence that the accused was able to read and write, and a copy of the indictment was provided to the accused, which he read: at [304]. The accused “made a sign that he was not guilty”: at [304]. There was sworn evidence by several witnesses that the accused “was nearly an idiot, and had no proper understanding”, and that while “he might be able to be made to comprehend some matters … he could not understand the proceedings on the trial”: at [304]. The trial judge, Alderson B, referred with approval to the approach taken by Parke J in R v Dyson (1836) 7 C & P 305; 173 ER 135.
90․The jury was then sworn to determine whether the accused was “now sane or not”: at [303]. Alderson B, in his charge to the jury, said that the question to be determined is “whether the accused has sufficient understanding to comprehend the nature of the trial so as to make a proper defence to the charge”: at [304]. This encompassed knowing that he might challenge any juror to whom he may object and to comprehend the details of the evidence: at [304]. The jury were directed that if they found that there was (at [304]‑[305]):
[N]o certain mode of communicating the details of the trial to the prisoner, so that he could clearly understand them, and be able properly to make his defence to the charge, they should find him not to be of sane mind.
91․The requirements set out in Presser have subsequently been adopted, in effect, by all Australian States and Territories, albeit with some variations. In Ngatayi v The Queen (1980) 147 CLR 1 (Ngatayi), an Aboriginal person “who did not speak or understand English was charged upon indictment in Western Australia with wilful murder”: at [1]. The accused’s counsel submitted that “the accused was incapable of understanding the proceedings so as to be able to make a proper defence”: at [2]. The relevant statutory provision at that time, s 631 of the Criminal Code 1913 (WA) provided that when an accused person is called upon to plead to an indictment and it appears to be uncertain for any reason whether he is capable of understanding the proceedings at the trial so as to be able to make a proper defence a jury is to be empanelled to determine the issue.
92․In Ngatayi there was thus no issue of the accused’s mental processes being disordered or impaired, but the accused was incapable of understanding the law governing the offence with which he was charged. This lack of understanding was partly by reason of his inability to communicate in English but also partly due to cultural issues. The accused could not understand that commission of the act causing death was insufficient to establish the charge and that the commission of the act had to be accompanied by an intention. The accused was represented by counsel, and the accused was able to communicate to counsel what he did and why you did it. After referring to the statement made by Alderson B in Pritchard the plurality of the majority of the High Court (Gibbs, Mason, and Wilson JJ) said, regarding the test for fitness to plead expressed by Smith J in Presser, at [8]:
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 Reg v 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”.
93․Their Honours went on to say that s 631 of the Criminal Code did not imply that an accused could “only be tried if he is capable, unaided, of understanding the proceedings so as to be able to make a proper defence”: at [9]. If, for example, an interpreter is available, any incapacity based upon inability to speak or understand English is removed: see at [9]. Similarly (at [9]):
[I]f the accused is able to understand the evidence, and to instruct his counsel as to the facts of the case, no unfairness will generally be occasioned by the fact that the accused, himself, does not know or cannot understand the law.
94․In dismissing the appeal their Honours said, at [10]:
In the present case there is no reason to doubt that the applicant understood the nature of the proceedings and the nature of the evidence. He was capable of giving evidence as to the circumstances out of which the charge arose, including evidence that he was drunk when he stabbed White. His case is that he did not understand the relevant legal concepts.
95․Subsequently, in Kesavarajah v The Queen (1994) 181 CLR 230 (Kesavarajah), the High Court confirmed, in the context of s 393(1) of the Crimes Act 1958 (Vic) that fitness to plead is to be determined by reference to the factors mentioned in Presser: Three judges of the court (Mason CJ, Toohey and Gaudron JJ) (Deane and Dawson dissenting on this point) held at [231]:
[T]hat the accused’s fitness to be tried was not to be determined solely by reference to his condition immediately before the commencement of the trial, but as well after having regard to what his condition would or was likely to be during the course of the trial.
96․As the plurality of the majority of the High Court made clear in Ngatayi, the Presser factors set the minimum standard which the accused must equal in order to be found fit to be tried: Kesavarajah at [245]. The question remains: what level of achievement or proficiency is required in order to meet each of the minimum standards?
97․In R v W, R [2019] SASCFC 33; 133 SASR 331 (R v W, R), the Full Court of the Supreme Court of South Australia addressed the Presser criteria as expressed in s 269H of the Criminal Law Consolidation Act 1935 (SA). The accused in R v W, R was 81 years old. He suffered from vascular dementia which was acknowledged to be a progressive disease. The primary judge found that the accused’s cognitive state had been subject to “some deterioration” since 2015. While the accused did not have an intellectual disability, the primary judge found his vascular dementia resulted in “mild impairment in executive functioning, some short-term memory loss and patchy long-term memory loss”: at [20].
98․The primary judge found that (at [20]):
[I]t was more likely than not the accused suffered a mild neurocognitive disorder. The evidence did not support a finding that the accused had severe or advanced dementia [and] … the progression of the accused’s vascular dementia was likely to be a slow, subtle and gradual deterioration over time.
The primary judge continued (at [20]) that the accused had:
[P]articular difficulties with short-term memory for verbal information. While he [was] able to encode meaningful and structured verbal information, he [had] difficulties in his ability to retrieve that information. However, with assistance and prompting by way of a reminder of such material, he [was] able to recall that information with some degree of accuracy.
99․The primary judge found the accused unfit to stand trial on the basis that he was (at [22]):
[U]nable to exercise his procedural right to give evidence and was unable to make a rational decision whether or not to give evidence in his own defence despite having an understanding of that right.
100․In the leading judgment on the appeal to the Full Court in R v W, R, Stanley J (with whom Blue J agreed) stated that the test in Presser was intended to “be applied in a reasonable and commonsense fashion”: see at [24] and [30]. His Honour stated that “[a]t issue is the question of comprehension rather than skill” and that, “[p]roperly understood, the minimum requirements may not be very difficult to meet”: at [24]. His Honour went on to say at [28]:
A reduction in a capacity relevant to whether a person is unfit to stand trial is not sufficient for a finding a person is unfit. There must be an absence of capacity to understand and follow the proceedings as required in Presser.
101․Stanley J went on to state at [29] that the Full Court in the earlier case of R v Hayles [2018] SASCF 58; 131 SASR 186 (Hayles) expressed approval with the following passage of the decision of the Court of Appeal of New South Wales in R v Rivkin [2004] NSWCCA 7; 59 NSWLR 284 (Rivkin) (at [297]-[300]):
The central question which arises, in this respect, is whether a reduction in the capacity of an accused to meet the requirements in R v Presser, but which falls short of denying to that accused the capacity to understand and to follow the proceedings in each of the necessary aspects, is sufficient to constitute unfitness, and to justify appellate intervention, in accordance with the test previously mentioned.
In our opinion, that question should be answered in the negative. The test in R v Presser is directed to the minimum requirements for a fair trial. So long as the accused can understand and follow the proceedings in each of its facets, can give appropriate instructions, and can present a proper defence to the charge, he or she is to be regarded as fit to be tried. The fact that the accused may have done so in a better way, had suitable medical treatment or medication be provided, or had that accused possessed greater intelligence or acuity of mind, does not seem to us to be relevant to the question of fitness.
Any other approach might invite invidious comparisons between accused of different intellectual backgrounds or personalities. It could also invite a fruitless search for a hypothetical accused with the capacity, intellectual or otherwise, which might equip him or her with the ability to conduct a defence at a predetermined level of skill.
That is not the concern to which the test in R v Presser is addressed. Inevitably there will be accused who could have done better in a trial, had they possessed a more attractive personality, greater intelligence or education, improved communication skills, a deeper appreciation of the factual and legal issues, or even a better appreciation of the trial process, than those possessed or displayed at trial. It does not necessarily follow that they were unfit to be tried.
(Citations omitted.)
102․Later, at [30], Stanley J, said, citing Hayles:
[T]he fact that an accused suffers from a mental disorder or impairment which reduces his capacity to follow the evidence or the course of the proceedings does not render him unfit to stand trial. The test of unfitness requires that the accused is entirely unable to follow the evidence or the course of the proceedings.
103․The decision in Hayles was, on this point, followed by the Court of Appeal in this jurisdiction in Decision Restricted [2025] ACTCA 3 (Decision Restricted), which was a case where the accused’s fitness to plead to serious charges arising out of a motor vehicle collision was raised due to the effects of a traumatic brain injury sustained by the accused in the collision. The primary judge declined to accept expert evidence that the accused was unfit to plead. An appeal from that decision was dismissed. The Court of Appeal, at [131] said that some matters relevant to the determination of fitness in individual cases will include:
(a)the complexity of the charges;
(b)the length of the trial;
(c)whether the accused is represented by counsel;
(d)whether steps can reasonably be taken to accommodate difficulties experienced by the accused, such as adjourning the proceedings, the provision of one-on-one assistance, insistence on brief, clear questions to the accused if he or she is examined on oath, and/or providing an opportunity for the accused to narrate his or her version of events without interruption; and
(e)that the disorder or impairment of an accused will disrupt the flow of the trial does not make the person unfit to plead.
104․Regarding the level of achievement or proficiency possessed by an accused relevant to determining whether it may be said that the accused is unfit to be tried by reason of inability to follow the evidence or the course of the proceedings, the Court of Appeal cited the decision in Hayles to the effect that the accused must be “entirely unable to follow the evidence or the course of the proceedings”.
Consideration
105․This is not an application for a permanent stay of the charges against the accused. As such, the broader considerations that may be relevant to an application for a stay do not call for consideration in the present proceedings: see, generally Moubarak by his Tutor Coorey v Holt [2019] NSWCCA 102 and the cases cited therein. The present case comes to be decided on the Presser criteria as set out in s 311 of the Act, which are directed solely at the specified aspects of the cognitive capacity of the accused.
106․There is, in my opinion, potential tension between the oft expressed statement that the Presser criteria are to be applied in a “reasonable and commonsense fashion” and the apparent strictness adopted in determining whether the accused meets the individual Presser criteria as expressed in Rivkin, Hayles, R v W, R and Decision Restricted. It is difficult to identify how the criteria are to be applied in a reasonable and commonsense fashion if all that needs to be demonstrated to establish fitness is, for example, that the accused has some capacity to follow the course of the proceeding or to understand the substantial effect of the prosecution evidence.
107․In cases where an accused has suffered cognitive deficits relevant to the assessment of fitness to plead through a traumatic brain injury, there will often be a clear point in time before which the accused demonstrably met the Presser criteria and the point at which she or he did not. It will not always be so easy in assessing fitness to plead where the cognitive deficits are the result of a degenerative disease such as dementia. By reason of degenerative disease an accused person may, and frequently will, reach a stage where they have some residual capacity regarding individual Presser criteria, but in reality, have no useful capacity. For example, such a person may be able to follow parts of the proceeding and not the rest.
108․This apparent tension is relieved when it is recollected that the criteria in s 311 are designed to be applied in a process (a criminal trial). Some of the criteria are relevant to distinct or identifiable parts of the trial, such as the capacity to exercise the right to challenge jurors, but in general they identify capacities which must be present throughout the trial. For example, the capacity relevant to s 311(1)(d) is a capacity to follow the course of the proceeding, not part of the proceeding.
109․In making the above observation, I am not to be taken as suggesting that an accused will necessarily be unfit to be tried because they cannot understand complex evidence or aspects of the law relevant to the proceeding. Many persons of average or even above average intellectual capacity will struggle to understand aspects of DNA evidence or tendency/coincidence evidence. It is trite to say that arrangements can be made in such cases to address these issues. For example, prosecution expert evidence may be provided to the accused well in advance of the trial to allow her or him to seek their own expert explanation of the evidence. In cases of procedural or evidentiary complexity, the retention of lawyers by the accused will also assist. As observed in the above analysis of the cases, it is relevant in determining the issue of fitness to consider what steps can reasonably be taken to accommodate difficulties experienced by an accused, such as adjourning the proceedings, the provision of one-on-one assistance, insistence on brief, clear questions to the accused if he or she is examined on oath, and/or providing an opportunity for the accused to narrate his or her version of events without interruption.
110․I am satisfied on the evidence before me that the accused was, as at October 2024 when he was interviewed by Dr Hatzipetrou, able to understand in a general way the nature of the charges against him. He understood that they were charges alleging sexual offending. This position continued throughout the period covered by the evidence of Mr Deakes.
111․I am also satisfied that the accused had the capacity to enter pleas to the charges at the time he was seen by Dr Hatzipetrou. The accused demonstrated the capacity to dispute the allegations and to indicate an intention to plead not guilty. The evidence of Mr Deakes on this issue is more difficult. In the conversations between the accused and Mr Deakes before the affidavit of 20 August 2024, Mr Deakes makes no reference to discussing with the accused the nature of a plea and what plea he intended to enter. In the affidavit of 23 January 2025, Mr Deakes refers to conversations with the accused in which the accused clearly indicates that he understands the nature of a plea and asserts an intention to plead not guilty.
112․In his third affidavit, affirmed on 24 February 2025, Mr Deakes referred to the accused being unable to recollect what pleas he had entered to the charges during the AVL proceedings. This would be consistent with memory deficits and, by itself, would not establish a lack of capacity to enter pleas to the charges. The concerning aspect of the accused’s presentation during the interview with Mr Deakes on 20 February 2025 is that the accused could not explain the difference between a plea of guilty and one of not guilty. This is consistent with a deterioration in the accused’s cognitive capacities congruent with progression of his dementia.
113․I am satisfied on the balance of probabilities that the accused’s dementia has worsened between January 2025 and 20 February 2025 such that the accused no longer has the capacity to understand the nature of a plea to the charges against him and enter considered pleas.
114․There can be no doubt that the accused understood his right to challenge jurors when he was seen by Dr Hatzipetrou. Despite some equivocal statements by the accused to Mr Deakes on 20 February 2025 about not knowing how he was supposed to exercise his right of challenge because he knew nothing about the potential jurors, the accused was able to express a preference for male jurors. I am not persuaded that the accused does not have the capacity to exercise his right to challenge jurors.
115․I am satisfied that the accused has the capacity to understand that the proceeding is an enquiry about whether he committed the charged offences.
116․I am satisfied on the balance of probabilities that the accused does not have the capacity to follow the course of the proceedings. The evidence of Dr Hatzipatrou, supported by that of Mr Deakes, is that the accused’s mental impairments leave the accused unable to assimilate information after a very short period of time. As I understand the evidence of Dr Hatzipetrou, this is not simply a problem with memory or recollection of what the accused hears. After a very short period of exposure to information (such as evidence) the accused’s capacities become overwhelmed resulting in the accused no longer following the proceeding and, instead, becoming frustrated and distracted and engaging in tangential thought.
117․I am also satisfied that no accommodations can be made to the trial process that will raise the accused’s capacity to the minimum required level. The accused lacks the capacity to recognise that he is not following the proceeding and, as such, he cannot advise his lawyers that this is the case. The fact that the accused will be represented by a lawyer at his trial does not remove this deficit. I accept the evidence of Dr Hatzipetrou that the chasm between the accused’s capacity to follow the proceeding and the minimum requirement required by the Presser criteria is so great that it cannot be bridged by any accommodation in the Court processes.
118․I am satisfied that at the time the accused was interviewed by Dr Hatzipetrou, he had capacity to understand in a general sense what evidence is and why evidence is placed before the jury. I accept, however, that the accused has no capacity to distinguish between relevant and irrelevant evidence, which means that he lacks the capacity to understand the substantial effect of the evidence that may be given in support of the prosecution. I am not persuaded, however, that this deficit could not be appropriately addressed during a trial.
119․Counsel appearing for the accused will, of course, be responsible for identifying and objecting to irrelevant evidence. I am unpersuaded that a process of frequent breaks and patient explanation by counsel of the key aspects of the evidence of any particular witness would be inadequate to enable the accused to understand to the minimum degree necessary the substantial effect of the evidence led by the prosecution.
120․It must follow from my findings regarding the accused’s capacities to enter pleas to the charges and to follow the course of the proceeding that he also lacks capacity to provide instructions to his lawyers.
Conclusion
121․I am satisfied that the accused is unfit to plead in that he does not meet the minimum standards required by paragraphs 311(1)(b), (d) and (f) of the Act. In light of the nature of the accused’s impairment and its deterioration over the period that he has been seen by Mr Deakes, as well as the accused’s extreme age, I am satisfied that it is unlikely that the accused will become fit to plead within the next 12 months.
122․This is an unredacted version of the reasons for finding the accused unfit to plead, and is not to be published to anyone other than the parties. A redacted version will be published on the Court’s website. The redacted version of the judgment is not for publication until the conclusion of criminal proceedings against the accused.
Orders
123․For the above reasons, I make the following orders:
(1)I find the accused is unfit to plead.
(2)I find the accused is unlikely to become fit to plead in the next 12 months.
(3)I find the accused is incapable of making an election pursuant to s 316(2)(b)(ii) of the Crimes Act 1900 (ACT) and there is no guardian who has the power to notify the Court under s 316(2)(b)(ii).
(4)I direct the ACAT to appoint a guardian with power to notify the Court under s 316(2)(b)(ii) of the Crimes Act 1900 (ACT), before the Court first fixes a date for the hearing, if the guardian is of the opinion that it is in the best interest of the accused for the special hearing to be a trial by a single judge without a jury.
(5)List the matter before the Registrar on Wednesday, 28 May 2025 at 9:00am for directions.
| I certify that the preceding one hundred and twenty-three [123] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Burns. Associate: Date: |
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