R v Bauer - [2016] SADC 88

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BAUER
Criminal Trial by Judge Alone
[2016] SADC 88
Reasons for Decision of Her Honour Judge Tracey
29 July 2016
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY
Whether elements of offence made out.
Held: Satisfied beyond reasonable doubt of the elements of robbery.
Criminal Law Consolidation Act 1935 (SA) s 269H, s 269I, s 269(b) s 269(c), referred to.
R v Fabian [2009] SADC 67; R v Taylor [2014] SASCFC 112; Ngatayi v The Queen (1980) 147 CLR 1, discussed.

CRIMINAL LAW - PROCEDURE - FITNESS TO PLEAD OR BE TRIED
Accused charged with robbery, aggravated serious criminal trespass and theft - whether accused fit to stand trial - psychiatric and neuropsychological assessment - whether capable of instructing lawyers and whether capable of exercising procedural rights.
Held: Application refused. Accused mentally fit to stand trial.

R v BAUER
[2016] SADC 88
Background

Dallas Bauer[1] is charged with one count of robbery, alleged to have been committed on 28 December 2014, and one count of both aggravated serious criminal trespass and theft, alleged to have been committed on 20 February 2015.
[1] Mr Bauer is also known by the surnames Pulbrook and McGlynn.
Mr Bauer disputes that the offence of robbery has been made out. Further, he has made an application pursuant to s 269H of the Criminal Law Consolidation Act 1935 (SA) (‘the Act’) that he is mentally unfit to stand trial in relation to all offences.
Robbery
The particulars of the alleged offence are as follows:
Dallas Michael Bauer on the 28^th day of December 2014 at Kilburn, threatened to use force against Dascey Louise Crouch, in order to commit the theft of $160.15 cash, and the threat was made at the time of, or immediately before the theft.
The offence of robbery is made up of the following elements, each of which the prosecution must prove beyond reasonable doubt:
1The accused committed a theft;
2That he used or threatened to use force in order to commit the theft; and
3That the force was used or threatened at the time of, or immediately before or after the theft.
There is no dispute in relation to the first element of the offence, rather the dispute concerns only whether Mr Bauer threatened to use force in committing the theft.
It is alleged that Mr Bauer entered through a ‘staff only’ door at the side of the McCafe area of McDonalds at Kilburn, into an area behind the McCafe service area, where Ms Crouch was working. There is no dispute as to Mr Bauer’s actions, which are captured on CCTV[2] nor any dispute as to what he said to Ms Crouch at the time.
[2] Exhibit P14.
The CCTV footage of Mr Bauer’s interaction with Ms Crouch accords with the statement she gave to police, showing Mr Bauer entering the service area, standing to her back. Ms Crouch is seen to move towards the camera in order to throw something into a bin. Mr Bauer then follows her to the other side of the counter where the cash register is situated. He is seen to be standing closely by her side, watching over her shoulder while she opens the cash drawer. He then removes money and runs off.
In her statement to police, Ms Crouch said:
All of a sudden I heard this voice from behind me say ‘excuse me.’ I turned around and was facing towards the front service area of the McCafe. There was a male standing about one metre away from me in the staff area…The male said ‘Can you open the till.’ He said it in a very casual and straightforward manner.
I was terrified because he had confronted me. He didn’t threaten me but I thought he may have had a weapon or something. No one else was with me and I was thinking of ways to tell my manager that he was there.
I replied, ‘Sorry, this till?’ and he said ‘Yes’. I said ‘Ok, I’ll just put this piece of rubbish away and then open it.’...The male wasn’t really doing anything – he was looking around to see if anyone else was around.
I stepped over towards the till and he walked closer and stood behind me and was looking over my shoulder. I tried putting something through to open the till so I could give him money but I did it wrong and it didn’t open the first time.
That’s when he said ‘Just hurry up, just put through a burger and open the fucking till.’
He didn’t raise his voice but I could hear a lot more aggression in his voice. When he said this, I was trying to remember everything that we had been taught about these situations. ... The male was standing to my left but when the drawer opened he moved in front of the till drawer and emptied each compartment… I felt that when I couldn’t open the till the first time, his voice changed for the second time and I felt in danger and really intimidated by his tone of voice and his demeanour. When he first came in I didn’t feel overly intimidated but I was still scared about what could happen. I felt as though if I didn’t open the till he would have just assaulted me or just pushed me out of the way…
Defence counsel has referred me to R v Fabian[3] where Boylan DCJ considered the elements of the offence in the context of a theft where the accused said to the console operator, whose evidence was accepted by his Honour, ‘How about you open the till?’ in a normal tone, then asked again in a tone described as a little ‘aggravated’, ‘How about you open the fucking till?’ putting his hand into his pocket as he spoke. The console operator had agreed in cross examination that at no point had any actual threat been made, nor did he feel scared or think there was a weapon. He said he had handed over the money in accordance with company policy. Boylan DCJ was appropriately satisfied that the circumstances in which demands to open the till were made, were meant and perceived as a threat. Defence counsel has sought to distinguish the facts in Fabian in that here Mr Bauer did nothing by way of his conduct to make Ms Crouch think that she was under any threat. Of particular relevance, it is submitted, is that when Ms Crouch was approached, she had time to throw rubbish away.
[3] [2009] SADC 67.
In my view, the fact that Ms Crouch threw the small piece of rubbish away in the manner she did, cannot be taken as evidence that she did not feel any threat from Mr Bauer. In any event, I note that it occurred just as the first demand had been made. It was in all likelihood an attempt by Ms Crouch to collect herself and process what was taking place and it comes before Mr Bauer moves across with her to the other side of the counter, standing at the cash register and before the second demand was made. There can in my view be no doubt that in making the second demand, Mr Bauer was expressing himself by way of a threat. He was standing closely behind Ms Crouch demanding she ‘open the fucking till’. It was a demand that had escalated to the use of a threatening and aggressive tone and it is clear Ms Crouch perceived a threat. I am satisfied beyond reasonable doubt that Mr Bauer committed a theft, threatening to use force immediately before the theft was committed.
Fitness to stand trial
Pursuant to s 269I of the Act, it is to be presumed that Mr Bauer is fit to stand trial unless it is established, from an investigation conducted in accordance with Part 8A of the Act, that he is unfit to do so. The standard of proof to be applied in that investigation is that he has established unfitness on the balance of probabilities.
Section 269H of the Act provides:
269H—Mental unfitness to stand trial
A person is mentally unfit to stand trial on a charge of an offence if the person's mental processes are so disordered or impaired that the person is—
(a)unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based; or
(b)unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or
(c)unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.
It is conceded that Mr Bauer is able to understand the charges he faces and to respond to the allegations in a rational manner. The application is confined to consideration of whether Mr Bauer is unable to exercise his procedural rights or unable to understand the nature or course of the proceedings or follow the evidence.
In R v Taylor[4] Stanley J, in discussing the test to be applied said:
The test should be applied in a “reasonable and commonsense fashion”.[5] The test for fitness “properly understood … may not be very difficult to meet”.[6]
In order to be fit to stand trial, an accused must be able to follow the course of the proceedings so as to understand what is going on in a general sense, but it is not necessary that he or she is capable of following the complexities of legal argument or, for that matter, the intricacies of some forensic or expert evidence. As the majority of the High Court said in Ngatayi v The Queen[7] the test looks to the capacity of the accused to understand the proceedings, but complete understanding may require intelligence of quite high order, particularly in cases where complex 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.
Further, in assessing the fitness of a person to stand trial it is proper for the Court to weight the complexity of the charge faced by the accused and whether the accused is represented by counsel.’
[4] [2014] SASCFC 112 at [11-13].
[5] R v Presser [1958] VR 45 at 48.
[6] Eastman v The Queen [2000] HCA 29 at [298], (2000) 203 CLR 1 at 99.
[7] [1980] HCA 18, (1980) 147 CLR 1 at 8.
In support of Mr Bauer’s application, reports were obtained from psychiatrist Dr Maria Tomasic dated 30 May and 10 October 2015 and clinical neuropsychologist Dr Emma Scamps dated 9 June 2015. Both Dr Tomasic and Dr Scamps gave evidence before me.
Dr Maria Tomasic – report dated 30 May 2015
Dr Tomasic is a psychiatrist of some 18 years standing.
She interviewed Mr Bauer for the purposes of a report on 30 April 2015 by video conferencing to Mt Gambier prison, having been asked ‘to provide a report pursuant to s 269 of the Criminal Law Consolidation Act and specifically regarding his diagnosis, his level of intellectual functioning, his current fitness to stand trial and whether there are grounds for a mental impairment defence.’
Dr Tomasic was provided with relevant material including apprehension reports and witness statements, together with the written transcript of the record of interview Mr Bauer had with police on 20 February 2015. Details of Mr Bauer’s past psychiatric and medical history were given to Dr Tomasic by his mother sometime after the interview.
Dr Tomasic understood that prior to his remand in custody, Mr Bauer had been living alone in a unit, but was unsure whether this was actually a boarding house where he was known to have more lately resided.
Mr Bauer’s mother told Dr Tomasic that her son was receiving a disability support pension and had been diagnosed with schizophrenia, brain damage (as a result of a head injury after ramming his head into a brick wall), methylamphetamine abuse, and borderline personality disorder. Mr Bauer had received psychiatric treatment in South Australia, (having previously lived in country NSW) through Warinilla. Currently Mr Bauer was prescribed fortnightly anti-psychotic medication and antidepressants. While Mr Bauer used alcohol only occasionally, he had a long history of substance abuse and had been on the methadone program seven or eight times. As a child, Mr Bauer suffered physical and emotional abuse at the hands of his stepfather and domestic violence had meant the family moved frequently, resulting in attendance at over 19 different schools up to grade seven level, often in special classes. Mr Bauer’s mother had described to Dr Tomasic her son’s vulnerability, having been the victim of serious assaults. In particular she had described a serious sexual assault committed against her son after the December 2014 offending.
Mr Bauer told Dr Tomasic he had stopped taking his medication but could not recall exact dates or timelines. He was using speed and heroin intravenously and cannabis, all on a daily basis throughout the period of offending.
At interview Mr Bauer said he felt ‘pretty shit’ and had difficulty coping in prison. He said he had been assaulted while in prison.
Dr Tomasic concluded that Mr Bauer was unfit to stand trial based on his psychotic mental state and disorganisation and impaired memory. She found he lacked an adequate understanding of his offences and procedural rights and was, she said, unable to understand and follow proceedings even when they are explained to him, likely to be as a result of the combination of the effects of psychosis, past brain injury and substance abuse.
Dr Tomasic viewed the recent assaults against Mr Bauer against the background of abuse and assaults, as resulting in increased anxiety and depression and most likely a worsening of his psychotic symptoms.
With respect to the issue of competence to offend on 28 December 2014, Dr Tomasic said that while information suggested Mr Bauer was disorganised and disinhibited, most likely secondary to psychosis and substance use, he appeared to understand the nature, quality and wrongfulness of the actions. He was able to control his conduct and Dr Tomasic concluded there were no grounds for a mental impairment defence.
As to the aggravated trespass and theft committed on 20 February 2015, Dr Tomasic concluded that while Mr Bauer understood the nature and quality of his actions and could control his conduct, he could not reason with a moderate degree of sense and composure about the wrongfulness. Dr Tomasic found grounds for a mental impairment defence as while Mr Bauer had no memory of the offences, collateral information indicated he was disorganised and making little effort to prevent detection, allowing the victim to see him and even asking her to make him coffee. He used the victim’s phone to call a taxi, waited for it, and then took the taxi to an address where he was staying. When interviewed he was vague and could not recall his mother’s phone number and gave contradictory replies about wanting a solicitor.
Dr Tomasic reported that she found Mr Bauer was psychotic with hallucinations, had bizarre and paranoid delusions and psychotic thought disorder. He was also anxious and depressed with ongoing suicidal ideation.
Dr Tomasic concluded that Mr Bauer was currently unfit to stand trial but that this needed to be reassessed when the psychotic symptoms of his schizophrenia were controlled and neuropsychological testing had been done to clarify the extent and nature of his cognitive deficit.
Dr Maria Tomasic - report dated 10 October 2015
Dr Tomasic interviewed Mr Bauer again on 8 October 2015. She had received a copy of Dr Scamps’ report.
After Dr Tomasic explained to him the reason for the further report, it appears Mr Bauer understood he was seeing Dr Tomasic again ‘To see if I’m fit to plead: to see if I can get into trouble or not.’
Dr Tomasic noted that Mr Bauer had been released on home detention bail on 28 July 2015. He had resumed the methadone program and was not using illicit drugs or alcohol. He told Dr Tomasic that he felt ‘better’ and that his thoughts were more organised. His mood had improved but he still felt depressed in the mornings. He continued to feel anxious about everything.
On examination, Dr Tomasic found Mr Bauer mildly dishevelled, settled and co-operative. She wrote:
He was preoccupied and intense at times. He had a limited vocabulary and concrete thinking and became moderately disorganised when discussing more complex themes such as fitness to stand trial. He described bizarre and paranoid delusions and hallucinations.
Dr Tomasic found that Mr Bauer’s psychotic symptoms had reduced but that he continued to hear mumbling voices, although without command hallucinations. He continued to express paranoid, religious and bizarre delusions involving Jesus, the Devil and aliens.
In her discussion as to whether Mr Bauer was fit to plead, Mr Bauer told her that to plead guilty ‘meant you did something wrong while to plead not guilty meant you did something but they forgive you.’
As regards Mr Bauer’s fitness to stand trial, Dr Tomasic reported that she asked Mr Bauer if he could follow proceedings to which he replied:
Not real well, not really. My anxiety gets pretty bad and feeling like everything’s getting too much. Just try my hardest to get the general gist and if I can’t, wait for a letter to tell me what I’m to do next.
Dr Tomasic was of the view that Mr Bauer continued to have considerable difficulty understanding the concept of his procedural rights. She said that when he was asked what he would do if a lawyer gave him advice that he thought was wrong he replied ‘That’s a sticky one; I suppose get a different lawyer.’ When asked about a scenario of a lawyer advising him to plead guilty when he knew he was innocent he replied ‘Lawyer allowed to tell you to do that.’
Dr Tomasic concluded her report by saying that Mr Bauer remained unfit to stand trial in that he lacked an adequate understanding of his offences and procedural rights and was unable to understand and follow proceedings even when explained to him. She said that his understanding had not improved since May 2015 despite some reduction in psychotic symptoms and abstinence from illicit drug use and alcohol.
Evidence of Dr Tomasic
In her evidence, Dr Tomasic confirmed the views she had expressed in her reports. As to Mr Bauer’s procedural rights, Dr Tomasic said she arrived at her conclusion on the basis that Mr Bauer understood things that are on a concrete level, that is, he is able to repeat things said to him.[8] However, at a deeper level, his simplistic understanding of the role of the lawyer, for example (to do what the lawyer said because that’s his job) made him vulnerable. She said he also lacks an adequate understanding that would allow him to go through the process ‘safely’.[9]
[8] Page 24, line 23.
[9] Page 24, line 33-4.
As to his ability to follow proceedings in court, Dr Tomasic said that in the interview she had to rephrase or repeat things and did not believe he understood everything they spoke about.[10] Mr Bauer still had disorganised thoughts and indicated he did not understand things explained by his lawyer repeatedly.[11] She did not believe that in a court setting he would be able to follow the gist of what was going on. If for example there were multiple people talking in court over a long period of time, he would get lost in his own thoughts.[12] She said when he was very anxious, his thoughts would get more muddled/disorganised and his psychotic symptoms more pronounced.[13]
[10] Page 25, line 3-4.
[11] Page 25, line 6-7.
[12] Page 25, line 20.
[13] Page 25, line 13-14.
In Dr Tomasic’s view, the factors that impact Mr Bauer’s fitness to stand trial included his psychotic illness, the cognitive deficits, his level of anxiety and his substance abuse.[14] If very anxious, his concentration, memory and ability to process information and problem solve would be impacted.[15]
[14] Page 25, line 29-32.
[15] Page 26, line 1-2.
Dr Tomasic had recently viewed the footage of the police interviews with Mr Bauer and said her opinion was unchanged.[16] In the record of interview conducted on 28 and 29 December 2014, Dr Tomasic described Mr Bauer as slightly disorganised but very cooperative. She commented that he changed his mind rapidly for no obvious reason (wanting a lawyer then not wanting a lawyer) and appeared quite confused in terms of the series of events.
[16] Page 28, line 13-20.

With respect to the interview in February 2015, Dr Tomasic thought Mr Bauer was more irritable but still cooperative.[17] He had significant difficulty remembering his mother’s phone number which she said he should know, and was not thinking logically in terms of catching the taxi home after the offence.[18] He did not try to problem solve or prevent detection by police in that situation.
[17] Page 27, line 37.
[18] Page 28, line 7-8.
In relation to his ability to understand or respond rationally to the charge or the allegations, she stated that he had a limited ability because even though he did not remember the offences, his response was still ‘well I must have done it’ because he has been charged with it.[19]
[19] Page 29, line 32-5.
In cross-examination, Dr Tomasic agreed that in the December 2014 police interview, Mr Bauer understood both that the police were charging him with a robbery and the basic allegation about going to McDonalds and demanding money from the cash register. Dr Tomasic agreed he understood the allegations but his response to it was that it must have happened if he was charged with it.[20] Dr Tomasic agreed he recognised his clothing in the CCTV footage.
[20] Page 31, line 8-9.
When he said the girl from whom he had demanded money at McDonalds ‘would have freaked’, she agreed he had empathy in situations like that.[21]
[21] Page 32, line 6-7.
In relation to exercising procedural rights, Dr Tomasic said she believed Mr Bauer would not be able to think through the process, to question his lawyer adequately or question any recommendations given to him.[22] In terms of making decisions about his lawyer’s advice, she agreed he would understand whether he had to plead guilty or not guilty, but was unsure whether he understood the concept that his lawyer acts as his mouthpiece and has to convey his instruction to the Court.[23]
[22] Page 32, line 18-20.
[23] Page 32, line 37-8.
Dr Tomasic said in relation to the factors she had taken into account when arriving at her conclusion, that an assessment of how Mr Bauer would follow proceedings was based on what had happened in prior court appearances and how he was able to follow the conversation in her interview with him. She said she did not factor in the kind of evidence he would have to listen to at trial, but did factor in the length of a trial. The length of the trial was however unknown to her but as the charges were significant, she did not think any trial would be particularly brief. When challenged directly as to not having taken into account the content and the nature of the evidence he would hear at trial, Dr Tomasic said:[24]
I think that I have to the best of my ability. Obviously when doing reports we can only go by the information provided and the person’s presentation… So in terms of Mr Pulbrook he had difficulty going through an interview with one person at that time, so we are talking about May, the original time with one person. With me, over a prolonged, you know over a prolonged period the ability to repeat, he was quiet and even then he had difficulty understanding things. So I felt that was very relevant.
[24] Page 35, line 118.
Dr Tomasic agreed that whether people may be lying or exaggerating must be taken into account.[25] Further, she agreed there is no objective way of knowing if someone is making up the voices in their head and that you can only go by their behaviour and presentation,[26] adding that people tend not to choose antipsychotic medications like those administered to Mr Bauer unless they are unwell.
[25] Page 36, line 20-24.
[26] Page 37, line 5-11.
When asked for her comment on a prosecution case involving only one or two witnesses and playing video footage for about five minutes, Dr Tomasic said she could only go by the assessments she made in May and October. In October she believed Mr Bauer was very vulnerable and that even if he was able to concentrate, his interpretation could still be biased. Dr Tomasic said even with his lawyer explaining to him at frequent junctures what has happened at a particular point, she still had serious concerns that his lawyer’s explanations might not be adequate.[27]
[27] Page 38, line 15.
Dr Tomasic acknowledged that when she assessed Mr Bauer she did not closely consider the nature of the evidence that would be presented in each trial. When talking with Mr Bauer about the witness statements, Dr Tomasic said Mr Bauer was not really able to think about things in a very rounded way,[28] rather he focussed on direct questions and answered in a very simple concrete way. It appeared that when asked about what the witnesses had said in their statements, Mr Bauer would simply say that he did not remember anything.[29]
[28] Page 38, line 29.
[29] Page 39, line 7.
With respect to the significance of Mr Bauer’s change of mind as regards answering police questions, Dr Tomasic said that she could not see a real reason for the change and that he went from one extreme to the other.[30] Dr Tomasic did concede that with respect to the December offending, by the time he was interviewed he had calmed down and that on arrest, after having resisted police and laying face down in handcuffs, it was not surprising that he was agitated.[31]
[30] Page 40, line 29-30.
[31] Page 41, line 7.
Dr Tomasic was asked to comment on Mr Bauer’s choice to answer police questions. Dr Tomasic agreed that Mr Bauer understood he had a choice but that she did not know that he understood the ramifications of the choice he made. It was put to Dr Tomasic that Mr Bauer’s question to police of whether he was going to gaol suggested he appreciated the seriousness of the situation. Dr Tomasic agreed that when police were interviewing him Mr Bauer was aware he was in trouble and could potentially go to gaol.
Finally, Dr Tomasic acknowledged that when she made her assessments of Mr Bauer, she did not closely consider the nature of the evidence that would be presented in each trial.[32]
[32] Page 44, line 26.
Dr Emma Scamps – report dated 9 June 2015
Dr Scamps is a clinical neuropsychologist of some 15 years standing.
She assessed Mr Bauer on 19 May 2015, interviewing him over a two hour period in the Yatala infirmary, having been provided with background material including the witness statements, transcripts of the interviews on 28 and 29 December 2014 and 20 February 2015, and Dr Tomasic’s report dated 30 May 2015.
Dr Scamps detailed the offences with which Mr Bauer had been charged based on the police apprehension reports, witness statements and from Mr Bauer’s own account.
She described Mr Bauer as making good eye contact and said that she developed adequate rapport with him for the purpose of the assessment.
Dr Scamps described Mr Bauer’s speech as slow and somewhat limited. He became ‘somewhat overwhelmed and fatigued towards the end and looked like he was ready to stand and go, however he maintained his pleasant and co-operative demeanour and agreed that he felt somewhat overwhelmed.’ Dr Scamps felt that there was no evidence that he was currently experiencing a psychotic episode and said she gained the overall impression that he gave appropriate effort on the tasks and the assessment and considered the results were a valid representation of Mr Bauer’s current level of cognitive functioning.
The history Dr Scamps obtained from Mr Bauer differed in a number of respects from that reported to Dr Tomasic by his mother.[33] Mr Bauer told Dr Scamps that his mother helps him with shopping, cooking, buying clothes and prompting him to shower.
[33] It does not appear that those differences were of any real significance and in many respects it appeared Mr Bauer himself had provided considerably more detail.
Mr Bauer told Dr Scamps he was in gaol because ‘I broke the law’. He said he supposedly ‘robbed McDonalds and some lady,’ but did not remember. He could not say what he had been charged with but said he had been in Yatala since 20 February. He described to Dr Scamps details of the alleged offending, which were ‘consistent with what he told police on the night of his arrest.’
In her report, Dr Scamps detailed Mr Bauer’s responses to questions about the charges and court proceedings as follows:
When asked what it means to be charged, Mr Bauer stated ‘you’re in trouble… by the police. They think you’ve done wrong.’ When asked what he had been charged with he stated Breach of Bail. I asked about the offences of aggravated robbery and aggravated serious criminal trespass, and he stated ‘because not aggravated… I did not aggravate the police. Aggravated means you aggravated someone.’ When asked how serious those offences were, he said ‘very, very, very serious.’ He also stated stealing money was wrong and that if you did not pay for something it was wrong.
Mr Pulbrook stated he did not remember whether his rights were read to him when he was arrested however he understood that ‘you can talk…you don’t have to talk’. He was able to name his lawyer as Trish and that her role was ‘to try and help me’. I asked if he instructed her and he stated ‘I don’t know. I don’t tell her, she tells me. It’s her job. She tells me what to plead.’ He also commented that there would be a man in the courtroom ‘who says what is going to happen to me’ and then he named that person as the judge. He did not know the role of the prosecution and asked if it was the other man in the police uniform. He was aware that you would be punished if you told a lie in court. He stated guilty ‘is when you did something wrong’ and not guilty is ‘you did something wrong but they forgive you’. He understood the judge determined whether he was guilty or not guilty. Mr Pulbrook stated he felt scared about going to court and ‘I don’t know what they talk about. I feel this big and they’re talking weird stuff and it scares me because I don’t know what’s going on. If I have to stay here (Yatala) I want to know what’s going on. The lawyer has tried to explain up I still don’t get it I don’t understand and I forget.’
Dr Scamps concluded that the results of her assessment were a valid representation of Mr Bauer’s current level of cognitive functioning. His attention and working memory was at the 0.1 percentile and was ‘very significantly impaired.' Mr Bauer’s General Intellectual Functioning was assessed in the ‘Extremely Low Range.’ Overall he demonstrated a ‘significant impairment in verbal new learning and memory, however his visual memory appeared to be somewhat stronger’ and demonstrated ‘significant executive dysfunction which indicates his frontal lobes are compromised.’
The neuropsychological assessment revealed that Mr Bauer has a ‘Mild Intellectual Disability,’ based both on his performance on the test of General Intellectual Functioning, and his description of his difficulty independently managing everyday activities. Dr Scamps found that ‘he also demonstrated quite a significant impairment of memory and executive functions (that is planning and organising, self-monitoring, idea generation).’
As to whether Mr Bauer was fit to stand trial, Dr Scamps found that Mr Bauer was ‘unable to clearly state what he had been charged with but he generally recognised the offences when they were discussed and was able to give his version of events.’ Dr Scamps concluded that ‘I had the impression that Mr Pulbrook was able to understand the charges and respond to them adequately.’ It was the case however, that Dr Scamps found that Mr Bauer was unable to exercise procedural rights or to follow the proceedings of the court finding that:
He expressed that he felt confused and frightened in court as he could not understand what was going on. He also stated that his lawyer had explained certain concepts to him, but that he still did not understand. This is consistent with his neuropsychological test profile. In my opinion, Mr Pulbrook is not fit to stand trial.
Evidence of Dr Scamps
In her evidence, Dr Scamps gave the details of the various tests she had administered. Mr Bauer’s IQ places him in the range of having between a mild and moderate intellectual disability.[34]
[34] Page 49, line 37-8.
Test results indicated that Mr Bauer was unable to learn with repetition, which Dr Scamps said was relevant to his fitness to stand trial given that in a courtroom the information would normally be presented once rather than repeated over and over. Dr Scamps commented that this would make it hard for Mr Bauer to encode the information, to add to the information he has learned, and to keep it in his mind and apply it to what might happen twenty minutes later.[35]
[35] Page 50, line 26-34.
As to the results of the ‘Executive Function Test’, which assesses higher level thinking skills, (including planning and organising, being able to multi task and changing attention between two sorts of ideas, as in a conversation), Dr Scamps administered a planning and organising test, asking Mr Bauer to draw a complicated drawing that required organisation and structure to complete that task effectively. Mr Bauer showed great difficulty in performing the task. In terms of how those skills are relevant to someone who is trying to follow court proceedings, Dr Scamps said it would be difficult for Mr Bauer to organise the information in his mind. It affects memory because information needs to be well organised in order to remember it, and would also have an impact on being able to bring pieces of information together to rationalise or consider two alternative options.[36]
[36] Page 52, line 9.
Based on her assessment, Dr Scamps said she was very concerned about Mr Bauer’s capacity to understand and follow evidence and the course of proceedings. His working memory (the ability to hold material in your mind and manipulate it to work out problems; to work out what you’re listening to and to put information together to be able to remember things), based on the symptoms he exhibited, was very significantly compromised. A poor working memory is not something that can be improved and accordingly, in Dr Scamps’ opinion, Mr Bauer’s unfitness to stand trial is permanent.
In terms of him being able to follow proceedings in a courtroom, Dr Scamps said she does not believe his poor working memory would be assisted by a lawyer who reminds him about what is being said in court. While he would understand if his lawyer gave a very brief and concrete summary, he would get lost in the other events of the court and would not be able to then use that information to make any decisions around what he wanted to instruct his lawyer about or what he wanted to do in terms of his plea.[37]
[37] Page 54, line 13-21.
The footage of the interviews did not affect her opinion about Mr Bauer’s fitness to stand trial. She said she found Mr Bauer was impulsive in his responses and when asked if he understood he tended to go ‘yeah, yeah’ rather than ‘no.’ With respect to the relevance of his presentation at interview to following court proceedings, Dr Scamps believed there to be a difference in the interaction. In the police interview the officer is speaking to him directly and gauging in a non-verbal manner his understanding, repeating what he said and interrupting when he went off track.[38] In a court the interaction is less one on one and the information is more complex and requires putting information together in a more complex way to make decisions. Dr Scamps said she did not believe Mr Bauer is capable of making those complex decisions.[39]
[38] Page 55, line 23-4.
[39] Page 56, line 1-3.
In cross examination, Dr Scamps said her impression of Mr Bauer when being interviewed, was that he understood the charges but not in a complex way. She agreed he understood he was being interviewed over a robbery at McDonalds. He understood discrete pieces of information but struggled to put it together so that it made sense for him. She believed that if evidence was presented at trial using simple sentences that is, ‘I was working at the counter, it was night time and a man came in,’ he would understand the evidence in a simple way. If on the other hand, another witness came along and played video footage of the offence, she indicated that would be more difficult because there are now two things he would need to process. She believed that adding that extra information would make it more overwhelming given his working memory difficulties.
Dr Scamps said she did not make any assessment of how long the trial would go for but said she would be concerned about Mr Bauer’s capacity to cope with and comprehend information over a couple of hours, let alone days or a day.[40]
[40] Page 60, line 7.
Dr Scamps thought Mr Bauer would understand Ms Crouch’s evidence about what happened but would not be able to follow the nature of the questioning and put it all together to make good sense of it. He would be able to understand the gist of the evidence but does not have the capacity to understand the proceedings in their entirety to be able to instruct his lawyer and know what it all means.[41] Dr Scamps believed he would blindly follow the lawyer’s advice because that is their job[42] and would be very dependent and trusting of a lawyer.
[41] Page 67, line 7-13.
[42] Page 68, line 12-14.
In re-examination, Dr Scamps was referred to Mr Bauer’s ability to narrate his personal history in detail and she explained that this is relevant to his ability to communicate and express himself at a concrete level but it does not demonstrate his capacity to remember information on a day to day basis or a conversation he had yesterday.
Dr Scamps agreed Mr Bauer is able to understand basic concepts, but struggles to put it all together and make sense of it. Mr Bauer gets certain bits or snippets of information but struggles to make sense of it in a way the average person would. She believed he would not be able to put together his own defence other than to do what he is advised to do.
Mr Bauer’s arrest and interview on 28 December 2014
The video recording of Mr Bauer’s arrest in relation to the McDonalds offending on 28 December 2014 shows that at the time of his arrest, Mr Bauer was somewhat distressed and agitated. While I do not propose to recite all of what I consider to be relevant in the interviews in assessing whether Mr Bauer is fit to stand trial, and it is important to view the interviews as a whole, there are a number of issues which are particularly important to highlight.
At the outset of the interview on 28 December 2014, Mr Bauer asked police why he was being arrested and asked them to tell him what he did. When he was given his arrest rights, Mr Bauer responded:
All I want to do is ring a solicitor.
When specifically informed of his entitlement to a solicitor, and asked if he had a request he replied:
Yes I do. I want a solicitor and a mental health worker.
He went on to tell police that he is:
…actually Nunga but I can’t speak the native language.
He went on to say:
English is my first…
When told about his right to silence and whether he understood, Mr Bauer responded:
…’I exercise my right to total silence. Ok.’
When asked to confirm his name, Mr Bauer challenged the request, and said:
I don’t have to, silent.
Then after being informed of the statutory requirement, Mr Bauer gave police his name and his date of birth. When it came to his address, Mr Bauer was uncertain whether it is ‘439’ or ‘349’ Churchill Road.
When the camera was re-activated at the Holden Hill police station, Mr Bauer gave his name, date of birth and again said that he was uncertain whether his address was ‘349 or 439’.
The alleged events of that evening were put to Mr Bauer. He was able to spontaneously recall that he had earlier refused to speak with police. He told police that with respect to having indicated he wanted to speak to a lawyer he:
‘didn’t want to anymore. No. I refuse that right. OK.’
When told about his right to remain silent, the following conversation between police and Mr Bauer occurred:
QNo problem. Ok. So having said that Dallas, my partner and I are going to ask you some further questions, Ok.
AYeh, not a problem.
QYou’re not obliged to answer those questions…
AI understand that but I…
Q…but anything you say will be recorded…
A…and can be used as evidence, yeh.
Q…? … alright, so you understand your rights… ?...
AYeh I do mate.
QNo worries.
AAnd if I say something it’s like me admitting it, it’s good to a Judge...?... like…
QYep well that’s your decision if you wish to yep…
AI wish to tell the truth mate, look I’m …? ...you know.

Mr Bauer then detailed what he recalled of the events. He answered police questions and while he did not recall entering McDonalds McCafé area, gave a description of events that had taken place earlier in the evening at McDonalds when he had been trespassed by police.
When asked by police after some discussion about whether he understood the first charge would be trespass, Mr Bauer said:
I do yeh, not a problem. I’ll cop that.
When asked if he is ‘copping’ that charge, the interview proceeded as follows:
AYeh. Because obviously I was there ‘cos I wouldn’t be here if I hadn’t been.
QOk, so are you saying that you returned to the McDonald’s?
AI don’t remember returning but I had to of to be charged with trespassing so, that’s what my understanding is, yeh.
It is clear that Mr Bauer was able to follow the line of police questioning. He responded to their questions in a logical fashion. At times he disputed what was being put to him and corrected police, an example of which was as follows:
QSo you remember walking ...
ANo I don’t remember walking home, I just remember thinking I better go home.
It is clear that Mr Bauer had no memory of returning to McDonalds later in the evening. When certain of the allegations about the return were put to him, Mr Bauer asked questions that were relevant to the information that police had given him. In particular, he asked how he got behind the McCafe counter, recognised that he approached Ms Crouch from behind the counter, asked what he looked like on the footage and asked how much money he took from the till.
Defence counsel submitted that this passage showed that Mr Bauer was not applying any analysis to what police told him and readily accepted their version. I disagree in that it appears to me that Mr Bauer is in this case, asking relevant questions in the absence of a memory, working at trying to piece together the information he was being given.
Mr Bauer was shown a still photograph of himself taken at the McDonalds. He recognised the clothes and asked a number of questions in relation to the photograph. In particular, at page 18, line 26 he said:
QAlright, so that’s the photo we’re looking at there.
AYeh and where was that taken.
QThat was just before you walked into the store.
AWhat into this entrance part.
QInto the McDonalds. I’m not 100% - I’m can’t, I’m not going to comment on that because I didn’t know if it was inside the store or …
AOh, yeh, oh yeh, alright, yet.
Q…that’s before you’ve entered alright.
AOh yeh, it’s making not much sense but.
QDo you have no recollection
ANo. I don’t. It’s very confusing mate.
It would appear that the confusion Mr Bauer expressed is related to the fact he has no memory of the incident at McDonalds the second time rather than any confusion about what is being asked.
Later in the interview, police referred to the clothes they had taken from Mr Bauer’s premises, telling Mr Bauer the clothes were located in his bedroom, to which Mr Bauer said:
AOh they were the ones you were talking …
…
…
…
QBut these were, this clothing was scrunched up in a ball in the corner of the room about a metre away from where you were lying, OK.
AWell obviously I’ve taken them off yeh.
Mr Bauer again demonstrated that he understood and followed the police line of questioning when he said:
Q… so that is the crux of the robbery charge.
AOk yeh
Q… ‘cos you put this girl in fear.
AOk, yeh, yeh …
Q…whether or not you were conscious of that, and she’s ended up in fear.
Ayeh, yeh, OK I understand – she’s freaked out and I’ve taken her money.
When asked if he had any questions of police, Mr Bauer asked about how he had entered McDonalds, referring to what the CCTV footage showed and questioning how it was known that he had entered the McCafe service area, rather than entering through the main door.
Later in the interview, after the resist arrest charges were explained, Mr Bauer asked:
Do you think I’ll go to gaol for this?
When asked whether there may be a reason why he didn’t remember events, Mr Bauer gave a detailed description of his health problems explaining that he was a very ‘recluse’ person, that is, he kept to himself.
He clearly understood the questions police asked, was able to follow the story they told and asked relevant questions about the information he was given in an appropriate way to fill in the gaps in his memory, and drew together pieces of information to form a logical conclusion. Any confusion on his part is in my assessment, as a result of his inability to actually recall the events.
My overall impression from the interview is that Mr Bauer had calmed and settled from the time he was arrested. I note he had by this stage been treated in hospital, apparently for some minor physical injuries sustained during his arrest. I do not perceive that his decision to answer police questions arose from any confusion about his rights, nor is the change of mind all that surprising given the circumstances of his arrest.
While Mr Bauer did accept that he committed the trespass, despite not having any memory of a return to McDonalds and reasoning that if he is with police, then it must be the case that he did what they said, I note that he was able to make it perfectly clear that he was not saying that he recalled being there at the time. It is a qualified acceptance, perhaps born about by his willingness to please as the experts have observed, but not in my view, instructive of whether Mr Bauer would be unable to exercise his procedural rights.
Mr Bauer’s arrest and interview on 20 February 2015
The video footage of Mr Bauer’s arrest on 20 February 2015, showed Mr Bauer arrested, sitting being spoken to by police, some of whom were trying to calm a woman named ‘Kathleen’, who was also present. The disruption caused by Kathleen and her apparent displeasure with Mr Bauer is evident. Mr Bauer told police he was homeless, having been evicted. When police gave Mr Bauer his arrest rights, Mr Bauer nominated his mother to be called and Mr Bauer could not recall all of his mother’s mobile phone number. I note this was something of particular relevance to the experts. My impression of the footage is that Mr Bauer was distressed at that point. Kathleen was being particularly disruptive at the time, police asking her several times to go back into the house. Mr Bauer asked to speak to a solicitor. When told he can apply for bail back at the police station, Mr Bauer said:
‘yeah, like it’s gonna happen, yeah. When’s court?’
When the interview re-commenced at Holden Hill station, some 51 minutes later, Mr Bauer gave his name, date of birth and address. He corrected the police officer who had repeated back the address. He again asked to speak to his mother, but said that he did not want a solicitor. He was asked again about this issue and said he was happy to proceed on his own.
Mr Bauer was asked to explain what ‘anything you say is going to be recorded and maybe used in evidence’ meant to him. He replied:
Anything I say can be taken to court and used against me in court.
Mr Bauer was able to recall little of what police were alleging, other than to say he recalled climbing through a window. When asked why he could not remember, Mr Bauer said as follows:
ABecause of my psychotic episodes, like my brain switches and …
QOk just tell me a bit about that, what does that mean.
AWell Ok because my heroin use like, and I’m off my meds, so, my brain just clicks over and I sleep fuck all, sometimes I’ve been over medicated.
QRight.
AAnd I just go into black outs and like I don’t remember days on end.
QMmm …is that a common occurrence …no.
ANo, no, only in the past two months.
QTwo months Ok.
AWarinilla stopped prescribing my psych meds when I jumped off the Methadone.
Later in the interview, Mr Bauer was asked about his bail conditions. Mr Bauer was able to recall the times he was required to sign in to Corrections and did not agree when it was suggested to him that he had not signed in the previous day, giving details of what he said had occurred.
It is again apparent that Mr Bauer was more calm and co-operative after his initial arrest. It is against this change in demeanour that he had changed his mind with respect to having a solicitor present. On this occasion the arrest was somewhat traumatic by virtue of the presence of Kathleen who was clearly unhappy with Mr Bauer having brought police to her premises. During both of the interviews on 20 February 2015, Mr Bauer appeared to follow the line of questioning, and any confusion that arose was as a result of having no recollection of the events that were being described to him.
Conclusion
In my view there was a flaw in the assessment Dr Tomasic made of whether Mr Bauer would be able to follow the evidence, not having made an assessment of the nature of the evidence to be presented at trial.
In relation to Dr Scamps’ opinion, clearly she had concluded that Mr Bauer would understand the evidence at trial in a ‘simple way’ and would understand the ‘gist’ of the evidence. It was his ability to bring all the evidence together to understand the entirety of the proceedings so as to instruct a lawyer, of whom he would be very trusting, that was of primary concern.
I accept that both Dr Tomasic and Dr Scamps are very experienced clinicians and that I am not entitled to disregard their opinions capriciously.[43] However my assessment of Mr Bauer’s presentation at both interviews and that there was no evidence that the trial process had ever been specifically explained to Mr Bauer cause me to arrive at a different view. Certainly both experts had asked questions of Mr Bauer around the issue of how he had coped in previous court appearances and whether he understood the ‘things’[44] or ‘concepts’[45] his lawyer had repeatedly told him, but as far as I could tell, those questions were asked in the absence of understanding the experiences Mr Bauer may or may not have had with the court process and without any analysis of what and how those ‘things’ had been explained.
[43] [2014] SASCFC 112 at [34].
[44] Transcript page 25, line 7.
[45] Dr Scamps’ report page 12.
As discussed earlier, a factor to be taken into account in assessing Mr Bauer’s fitness to stand trial is his legal representation at trial. As Gibbs, Mason and Wilson JJ said in Ngatayi v The Queen:[46]
The section does not mean that an accused can only be tried if he is capable, unaided, of understanding the proceedings so as to be able to make a proper defence. This is self-evident when the incapacity to understand the proceedings is due to an inability to understand the language in which the proceedings are conducted. In such a case, if an interpreter is available the incapacity is removed. Similarly, in deciding whether an accused is capable of understanding the proceedings so as to be able to make a proper defence it is relevant that he is defended by counsel. If the accused is able to understand the evidence, and to instruct his counsel as to the facts of the case, no unfairness or injustice will generally be occasioned by the fact that the accused does not know, and cannot understand, the law. With the assistance of counsel he will usually be able to make a proper defence. That of course is the test which s. 631 provides: is the accused capable of understanding the proceedings at the trial, so as to be able to make a proper defence? The section does not require that an accused, before he can be tried, must be capable of understanding the law which governs his case, if that lack of capacity does not render him unable to make a proper defence.
[46] (1980) 147 CLR 1 at 9.
There is no question that Mr Bauer would rely heavily on his counsel to explain to him the proceedings in a simple and straight forward way. The allegations as regards Mr Bauer’s offending are not complicated and I accept that any trial would be relatively short. The victim would no doubt be called to give evidence in each case, supported by one or two relevant police officers. Mr Bauer’s apparent struggle to put discrete pieces of information together arose from Mr Bauer’s lack of memory, rather than general confusion. The interviews show that with patient effort, Mr Bauer can be engaged in a process and give appropriate focus to what he is being told.
Applying a reasonable and common sense application of the relevant test in s 269(c), I am not satisfied that with the assistance of counsel, Mr Bauer would not be able to understand the nature of the proceedings or follow the evidence or the course of proceedings.
In relation to Mr Bauer’s ability to exercise (or give rational instructions to exercise) procedural rights, while Dr Scamps expressed her concern that Mr Bauer would blindly follow his lawyer’s advice, it appears that her impression has been influenced considerably by what she has been told by Mr Bauer about his lack of understanding of what his lawyer has told him. That both experts accepted that Mr Bauer would be able to understand the basic concepts of pleading guilty or not guilty, is I think relevant. Again, there is no question he would be heavily reliant on advice, but what is revealed in the interviews is that Mr Bauer at that time, could understand what was being put to him; understood his rights, had insight into his predicament and could give reflective responses. I am in no doubt that with the appropriate guidance and support, Mr Bauer would be able to exercise any of his procedural rights, and provide rational instructions to his lawyer.
Again, applying a reasonable and common sense application of the relevant test in s 269(b), I am not satisfied that with the assistance of counsel, Mr Bauer would not be able to exercise his procedural rights.
It follows that I find I am not persuaded on the balance of probabilities that Mr Bauer satisfies any of the criteria for mental unfitness to stand trial.