R v Bidner

[2022] NSWSC 1676

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Bidner [2022] NSWSC 1676

Hearing dates:

5 – 6 December 2022

Date of orders:

7 December 2022

Decision date:

07 December 2022

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

1. The Court finds, on the balance of probabilities, that the accused, Adam Bidner, is fit to be tried for the murder of Shane Mears.

2. The matter is adjourned for mention to fix a trial date at 10am on 8 December 2022 before the Supreme Court, with leave to the parties to appear via AVL.

3. The accused is excused if legally represented.

4. Bail is not applied for and is refused.

Catchwords:

CRIME – murder – question of fitness raised immediately prior to trial – question of whether accused had sustained a traumatic brain injury – question of cognitive impairment – whether such impairment as might exist renders accused unfit

Legislation Cited:

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Mental Health Forensic Provisions Act 1990 (NSW)

Cases Cited:

R v Presser [1958] VR 45

Category:

Principal judgment

Parties:

Rex (Crown)
Adam Bidner (Accused)

Representation:

Counsel:
B Costello (Crown)
M Hobart SC

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Just Defence Lawyers

File Number(s):

2020/00202106

Publication restriction:

Nil

Judgment

1. HER HONOUR: On 14 November 2022 Adam Bidner was due to stand trial before this Court on an indictment charging him with the murder, on 5 July 2020 at Cessnock in this State, of Shane Mears, together with three associated charges. The trial was not able to proceed as the question of the accused’s fitness to stand trial was raised by his legal representatives.

2. The matter was adjourned until 5 December 2022 for a Fitness Inquiry to be held.

The Legal Framework

3. The statutory framework for the determination of the question of the accused’s fitness is provided by Part 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“MHCIFP Act”): s 35.

4. The MHCIFP Act applies to a person who has a mental health impairment or a cognitive impairment. It is the latter that is relevant to this inquiry, with at least some evidence that suggests that the accused may have sustained a traumatic brain injury (“TBI”) when he was involved in a motorcycle crash in 2016. Section 5 of the Act defines a cognitive impairment in these terms:

“5   Cognitive impairment

(1)  For the purposes of this Act, a person has a cognitive impairment if—

(a)  the person has an ongoing impairment in adaptive functioning, and

(b)  the person has an ongoing impairment in comprehension, reason, judgment, learning or memory, and

(c)  the impairments result from damage to or dysfunction, developmental delay or deterioration of the person’s brain or mind that may arise from a condition set out in subsection (2) or for other reasons.”

5. Section 36(1) of the MHCIFP Act provides the test of fitness:

“36   Fitness test

(1)  For the purposes of proceedings to which this Part applies, a person is taken to be unfit to be tried for an offence if the person, because the person has a mental health impairment or cognitive impairment, or both, or for another reason, cannot do one or more of the following—

(a)  understand the offence the subject of the proceedings,

(b)  plead to the charge,

(c)  exercise the right to challenge jurors,

(d)  understand generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged,

(e)  follow the course of the proceedings so as to understand what is going on in a general sense,

(f)  understand the substantial effect of any evidence given against the person,

(g)  make a defence or answer to the charge,

(h)  instruct the person’s legal representative so as to mount a defence and provide the person’s version of the facts to that legal representative and to the court if necessary,

(i)  decide what defence the person will rely on and make that decision known to the person’s legal representative and the court.”

6. The grounds upon which a person may be found unfit are not limited by the application of the section: s 36(2). The focus is on the person’s present capacity, and not upon his or her capacity at the time of the commission of the offence alleged.

7. Pursuant to s 44(1) of the MHCIFP Act the question of the accused’s fitness came before me for determination, as a judge sitting alone. The accused was represented by senior counsel and a solicitor at the inquiry, at which evidence was taken in both written and oral form. Fitness proceedings are not adversarial and neither party bore any onus of proof.

8. The Court’s task is to determine whether the accused is fit to be tried, considering those matters referred to in s 36 of the MHCIFP Act, and having regard to the considerations set out at s 44(5):

“44   Inquiry procedures

[…]

(5)  In addition to any other matter the court may consider in determining whether the defendant is unfit to be tried for an offence, the court is to consider the following—

(a)  whether the trial process can be modified, or assistance provided, to facilitate the defendant’s understanding and effective participation in the trial,

(b)  the likely length and complexity of the trial,

(c)  whether the defendant is represented by an Australian legal practitioner, or can obtain representation by an Australian legal practitioner.”

9. Section 44(6) requires the Court to give reasons for the determination made that “include the principles of law applied by the judge and the findings of fact on which the judge relied”.

The Evidence

10. The Court heard evidence adduced by both the Crown and the accused. The Crown relied upon the material in Exhibit (“Ex.”) A1 – A12, which included a report from Ms Lucienne Barhon, Clinical Neuropsychologist, of 21 November 2022 (Ex. A3), together with documentary material relating to criminal proceedings against the accused in March 2022, and his medical records from 2014 – March 2022. Ms Barhon was called before the Court on 5 December 2022 to give oral evidence.

11. The accused tendered the reports of Dr Gerald Chew of 30 November 2022 (Ex. 1) and Mr Sam Borenstein of 3 December 2022 (Ex. 2). Both report authors were called to give evidence, Dr Chew on 5 December 2022 and Mr Borenstein on 6 December 2022.

12. A summary of the evidence follows.

The Accused’s Medical History

13. Ex. A 12 contains the accused’s medical records, relating in the main to his admissions to the John Hunter Hospital (“JHH”) in 2014 and 2016 following motor vehicle crashes. The principal relevance of the material is insofar as it informed the opinions of the experts called before the Court on the question of whether the accused had sustained a TBI in the past that impaired his cognitive function, affecting his fitness to be tried. The most salient record are those that relate to the accused’s admissions to hospital in 2014 and 2016.

14. Records from the JHH establish that the accused was admitted there on 12 August 2014 after having been brought to the hospital by road ambulance following a motor vehicle crash. The accused had sustained a fracture to his right femur, which required femoral nail insertion in theatre. No other injuries were noted. The accused reported having consumed “ice”, or methylamphetamine, heavily in the four days preceding the crash. His consumption of the drug was borne out by urinalysis, and three instances of reduced consciousness were observed post-operatively due to narcotisation.

15. Brain imaging was carried out by CT scan, but no skull or brain injury was observed, and other observations were unremarkable. There were no reports of loss of consciousness or amnesia, and the accused did not meet the criteria for post trauma amnesia (“PTA”) testing.

16. During the accused’s admission it was noted that he was prescribed an anti-depressant, 25mg daily of Sertraline. The accused was discharged on 18 August 2014.

17. On 29 April 2016 an ambulance was called to attend to the accused following a single vehicle (motorcycle) crash. The accused, who was wearing a helmet, was found to have a Glasgow Coma Score (“GCS”) of 12 or 13 (out of a possible range of 3 – 15) and was observed to be likely intoxicated, combative and aggressive. A notation was made as to the accused possibly having suffered a brain injury, it seems on the basis of the GCS and his aggression. Sedation was administered and the accused was transferred by air to the JHH.

18. On arrival and following the administration of sedation the accused was noted to have a GCS of 3, consistent with unconsciousness. He had sustained a pedicle fracture at C7, being the neck area, possible liver contusion, and some damage to the femoral nail that had been inserted in 2014. No notation was made as to any head injury suffered by the accused, and no abnormality was noted to the head on examination on arrival. On 29 April 2016 CT brain imaging was carried out, the scan detecting no skull fracture or acute bleeding into the skull, with other observations unremarkable.

19. The accused remained in the JHH until 4 May 2016, when he discharged himself. There are no entries in the medical or nursing notes for the period up until 4 May 2016 raising any concern as to the accused having sustained a brain injury, or noting a need for investigation of a possible brain injury. No concerns as to the accused’s cognitive function were recorded. No PTA testing was done.

Previous Investigations as to Fitness

20. At the time of the April 2016 motor vehicle crash the accused had been at liberty facing criminal charges. After the crash he reported an inability to recall the events relevant to the allegations against him, and the possibility was raised by his then legal representatives that the accused had sustained a brain injury in the crash. A trial date was vacated to permit the resolution of the fitness issue.

21. Dr Ilana Hepner, Clinical Neuropsychologist, conducted an assessment of the accused’s cognition on 5 December 2016 with a view to providing an opinion as to the accused’s fitness to be tried. Dr Hepner noted that the accused could give a coherent account of his history, including details of the crash in which he was involved in April 2016. He reported feelings of tiredness since the crash, together with difficulties with memory and concentration. He was stressed because of the pending legal proceedings, but did not feel that he was depressed. The accused said he had been treated for depression since 2010 or 2011, being prescribed an anti-depressant. He acknowledged use of methylamphetamine.

22. Dr Hepner assessed the accused’s overall intellectual functioning as in the Borderline range, in keeping with his reported functioning prior to the motorcycle crash. Other results included:

Perceptual Reasoning	Low average range
Processing Speed	Low average range
Verbal Comprehension	Borderline range
Working memory	Borderline range
Verbal memory	Varied (Low average to average on one measure; impaired on another)
Visual memory	Varied (Borderline to average across tasks)

23. The accused had no deficits on measures assessing complex attention, complex problem solving, adaptive thinking, verbal generativity, non-verbal reasoning, and verbal abstract reasoning.

24. Dr Hepner thought that the accused had sustained a TBI of at least moderate severity. She concluded that he was fit to be tried, noting that he understood the charges and his options with respect to entering a plea; he understood the general nature of the proceedings; the personnel involved including the judge and lawyers; and his right to challenge potential jurors; he comprehended the general effect of evidence against him; and he could give an account of the events surrounding the incident the subject of the charges.

25. Although his report was not provided until 4 February 2017, Dr Richard Furst, forensic psychiatrist, saw and assessed the accused for fitness one week before Dr Hepner conducted her assessment.

26. In speaking with Dr Furst, and in contrast to his presentation to Dr Hepner, the accused could not remember the events of the relevant night at all. Also, in contrast to his meeting with Dr Hepner, the accused said he did not understand the role of the judge or his right to challenge potential jurors. He told Dr Furst he was not able to focus or remember relevant events and expressed his concern as to his capacity to participate in the forthcoming trial.

27. On the basis of his presentation to him, Dr Furst concluded that the accused was not fit to be tried.

28. A second neuropsychological assessment directed to fitness was conducted by Dr Susan Pullman, Clinical Neuropsychologist, in May 2017. In discussion with Dr Pullman the accused indicated an understanding of the nature of the charges and proceedings, the role of the various personnel in court, the options for a plea, and the general effect of evidence against him. He could give an account of relevant events.

29. On assessment Dr Pullman noted significant discrepancies between some of the indices, as a result of which it was not possible to assess the accused’s overall intellectual function. The following results were obtained.

Perceptual Reasoning	Average range
Processing Speed	Low average range
Verbal Comprehension	Borderline range
Working memory	Borderline range
Verbal memory	Varied (Low average to average on one measure; Borderline on another)

30. On 13 September 2017 the accused reported to the Rutherford North Medical Centre, giving as his history a traumatic brain injury 12 months previously, with attendant memory loss.

31. Dr Furst again examined the accused on 19 September 2017. The accused was able to tell the doctor that he was sad, and prescribed an anti-depressant at a dose of 50mg daily; he was also using methylamphetamine. On this occasion the accused said he could not understand the charges against him, and he had no comprehension of the role of the judge or prosecutor, with only a limited comprehension of the role of his own lawyer. He did not understand the concept of evidence and could not recall what legal advice he had received.

32. Dr Furst concluded that the accused was cognitively impaired, and not fit to be tried.

33. On 12 December 2017 the accused was found unfit to be tried by the District Court at Newcastle. He was referred to the Mental Health Review Tribunal (“MHRT”). On 12 June 2018 the MHRT found that the accused would not become fit in a 12 month period.

34. On 6 September 2018 several summary offences that the accused faced before the Local Court at Cessnock were dealt with pursuant to s 32 of the (now repealed) Mental Health Forensic Provisions Act 1990 (NSW), and the accused discharged.

35. On 7 March 2019 the outstanding proceedings against the accused before the District Court, which would ordinarily have proceeded to a special hearing consequent upon the MHRT’s finding of continuing unfitness, were terminated by the Director of Public Prosecutions.

The Accused’s Ordinary Presentation in 2020

36. In the period July to November 2020 the accused was in custody, it would appear following his arrest on 8 July 2020 for the alleged murder of Mr Mears. Telephone calls he made from custody to family members were recorded in the ordinary course, and transcripts of some 16 calls are in evidence as Ex. A8. Whilst much of the content of the calls is taken up with family concerns, some aspects of the accused’s conversations suggest that the accused has a better understanding of the legal system and the allegations against him than he has suggested to professionals who have assessed him more recently.

37. In a call of 20 July 2020, the accused discussed a search of his home by police and referred to his concerns about “an aircon”. He demonstrated an awareness of the significance of the air conditioning unit, it being connected with events at the scene of Mr Mears alleged murder and a witness in the Crown case, and he told his wife he would not discuss it on the telephone, although referring to the witness “who lives down the road”.

38. The accused referred to the same witness, as “Old Mate down the road”, in a conversation of 22 July 2020, asking his father to “tell him to fuckin’ just keep his mouth shut”.

39. The following day the accused asked his father to

“go out to the yard […] there somewhere under the ground, there’s a bag. […] Can you dig it up? […] I need to get rid of it” (Ex. A8, p.108).

40. In a call of 2 August 2020, the accused spoke with his father about the same witness earlier discussed, and recounted a conversation with another inmate with whom he had discussed the right to silence, and the need to “get a good solicitor” (Ex. A8, p.124).

41. On 8 August 2020, on this occasion speaking with his wife, the accused told his wife about a conversation with another individual from whom he had discovered that police investigating Mr Mears’ death had photographs of a person who had been at the dump, where Mr Mears was killed. The accused suggested:

“If I’m the prime suspect, how come they’re fuckin’, how come they’re taking photos of someone else that, like, they don’t know what the fuck happened. […] And, […] that is a reasonable doubt” (Ex. A8, p. 131).

42. Towards the end of that same conversation the accused told his wife, “I’ll go for Supreme Court bail” (Ex. A8, p.133).

43. In a conversation of 8 November 2020 the accused discussed “the DPP” with his father, saying:

“[…] the DPP fuckin’, um, want more talks. They, they don’t have fuckin’, they’re trying to find more evidence and that. That obviously shows that they got nothin’” (Ex. A8, p.167).

44. On 15 September 2021 the accused entered pleas of not guilty to the charges relating to Mr Mears’ death, and was committed for trial to the Supreme Court. He was formally arraigned before this Court on 10 December 2021 and entered pleas of not guilty.

Evidence Before the District Court in March 2022

45. The accused appeared before the District Court earlier this year, on 17 March 2022, having pleaded guilty to offences of using an offensive weapon with intent to commit an indictable offence and recklessly causing grievous bodily harm. No issue of fitness was raised. A quantity of documentary evidence was tendered to the sentencing court on the accused’s behalf, and some of that material is before this Court, as Exs. A5 – A7.

46. Exhibit A5 is an undated handwritten letter from the accused to the District Court, tendered during the course of sentence proceedings. In his neatly written letter, the accused told the District Court that:

“My time in custody since the 8^th of July 2020 has been a time of self-reflection, self-analysis, learning, development and growth.

[…]

My biggest moment of clarity came when I saw the video footage of my violent assault of the victim. In that moment through sober eyes and with a sober mind I realised I had become everything I feared and despised whilst growing up.

[…]

I voluntarily transferred to the Drug Recovery Wing at the Parklea Correctional Centre. It is a new initiative. I successfully completed the 12 week programme. I have been a model inmate. I have earned the position of head sweeper and delegate for the wing. I am a mentor in the programme. I help other recovering inmates. I regularly lead our daily Narcotics Anonymous meeting and I am committed to living a drug free life.”

47. The accused went on to list 7 personal improvement and drug awareness courses he had successfully completed in custody.

48. In a second handwritten letter dated 7 March 2022 (Ex. A6) the accused told the District Court about the impact of a custodial environment on his wellbeing. He concluded:

“I wish to bring you further awareness of the conditions we are enduring during the pandemic and would like you to know I am doing my best to better understand myself and identify and prevent past behaviours which led to my offending.”

49. References and letters from family spoke of the accused as an active and engaged father. His wife referred with pride to his roles in custody as “Drug mentor, Wing Delegate, and sweeper” (Ex. A7, p.43). His father and a sister also referred to the accused’s role as mentor to others. The accused’s sister observed that the accused “was and still is a very intelligent person” (Ex. A7, p. 52). An employer, Mr Brown, stated that the accused was an honest and reliable worker in the field of demolition, who was sufficiently valued as to be re-employed on release from custody.

49. There was no suggestion that the accused required assistance in the community with daily living.

50. The report of Sam Borenstein of 3 March 2022 was before the sentencing court in March 2022. In it Mr Borenstein recorded the accused’s account of the circumstances leading up to the commission of the offences, and the accused’s history of drug use. The accused told Mr Borenstein of his efforts at rehabilitation since entering custody, and referred to his role as head sweeper and wing delegate, roles which involved him moving about the gaol to mentor others and promote a rehabilitation programme to other prisoners.

51. Mr Borenstein concluded that the accused was “cognitively intact”. The only diagnoses Mr Borenstein made was of a Substance Abuse Disorder, in remission in custody.

Expert Assessments for these Proceedings

53. The Crown called Lucienne Bahon in its case. Ms Barhon is a clinical neuropsychologist who was provided with all relevant documentary material. She saw the accused in person over a three and a half hour period on 11 November 2022, and comprehensively tested his cognitive capacity.

54. On presentation the accused was “reserved and guarded” (Ex. A3, p.15). His speech was fluent and normal in rate and tone, although his responses were minimal, and his affect flat.

55. Ms Barhon obtained a history from the accused, although it was limited by the accused’s frequent protestations of memory failure and evasive responses. He told her that he could not remember his school years and was not sure about his academic performance at school. He recalled he had been working in demolition at some stage, but could not say when, and could not give an account of his work. He was able to remember having a long standing and heavy drug addiction, referring to the drugs he used and the frequency of use of each. He denied participation in any rehabilitative programmes.

56. The accused was vague as to his medical history and, although he recalled having been involved in two motor vehicle crashes, he could not recall much about either. He denied any involvement with mental health clinicians, but did recall having been prescribed Zoloft (an anti-depressant) although he claimed not to know what the medication was for. He said he was depressed and needed to be released from custody to obtain treatment.

57. Ms Bahon administered several objective tests to measure cognition, and also motivation and effort. She observed:

“… Mr Bidner’s performance across these tests was unsatisfactory and strongly indicative of reduced effort. Importantly, on two stand-alone tests designed to detect feigned or exaggerated memory impairment, Mr Bidner was performing at chance level, which is inconsistent with any relevant clinical population. Of note, his performance was only in keeping with individuals instructed to feign impairment or those who were asked to respond without ever seeing the original stimulus. Mr Bidner further demonstrated a highly atypical performance on an embedded task designed to detect exaggerated memory impairment (occurring in 0 percent of the normative population). Furthermore, analysis combining the results of several effort measures demonstrated his performance was not reflective of any possibly relevant neuropsychological or neurological population (e.g. occurring in 0% of the sample of individuals with either a TBI, major depressive disorder, anxiety disorder, reading or mathematics disorder, or ADHD).

Due to the above, further testing was considered unreliable. However, due to significant and unusual variability across tasks, the results of further testing have been interpreted (with caution) and described below. These results are felt to further highlight the unusual nature of his responses” (Ex. A3, p.23).

58. In terms of the accused’s intellectual function Ms Barhon said:

“There was evidence of several inconsistencies between his current and previous performances on this measure. For example, Mr Bidner was previously consistently performing in the Low Average range on an index of processing speed, whereas at the current assessment he scored in the Extremely Low range and at the 2^nd percentile. Similarly, he performed in the Borderline range previously on an index of working memory but in the Extremely Low range and at the 2nd percentile on the current assessment. Additionally, on two tasks of perceptual reasoning, Mr Bidner’s performance was highly variable, scoring in the Low Average and High Average range. This demonstrated an area of relative strength, placing his level of functioning in this domain above that of the previous assessment. It is considered likely his premorbid level of functioning is higher than previously estimated, as it would be highly unusual for someone of Borderline intellectual functioning to achieve scores at an above average ability level” (Ex. A3, p.24).

59. The accused’s performance on testing for new learning and memory were unreliable and Ms Barhon thought the results unlikely to be an accurate reflection of his actual ability. Similarly, test results relevant to adaptive and executive functioning were inconsistent with earlier test results and regarded as unreliable.

60. The accused’s claim of memory failure as to his medical history:

“ […] was inconsistent with his previously better ability to recall such information and is not considered explainable by any of his known medical complications. While it is understood there have been previous reports suggesting he likely sustained a moderate TBI from a motorbike accident in 2016, there is little evidence to confirm this in the hospital medical records from the time of this injury.

It is my opinion, having reviewed all the relevant records, that Mr Bidner more likely sustained a mild uncomplicated TBI, which is unlikely to have caused significant ongoing cognitive deficits” (Ex. A3, p. 26).

61. The accused’s performance on objective testing was highly indicative, in Ms Bahon’s opinion, of exaggerated impairment, and particularly, exaggerated memory impairment.

62. When the accused was specifically asked about the matters referred to in s 36 of the MHCIFP Act his responses were evasive without prompting. He was aware of having been charged with murder, and of “allegedly running somebody over” (Ex. A3, p.26), but seemed unaware of his plea. He was unaware of his right to challenge jurors, and said he didn’t know the purpose of a criminal trial. He claimed never to have heard of a jury, and said he didn’t understand its function even after it was explained to him. The accused showed only a vague understanding of the term “evidence”, and expressed an inability to instruct his lawyers, saying that he had no memory of anything associated with the alleged offences.

63. Ms Bahon did not accept the legitimacy of the accused’s expressions of almost complete incomprehension. She observed that some of his responses differed starkly to answers he had given to other clinicians on other occasions, such as his accurate explanation to Dr Hepner of the role and function of a jury. Ms Barhon also pointed to the evidence, including earlier neuropsychological assessments and the intercepted gaol conversations, that suggested that the accused could encode and retain the details of previous events and conversations.

64. Ms Barhon concluded that, despite his protestations of confusion and unknowing, the accused could follow court proceedings, instruct his lawyers, give an account of events, and generally meet the s 36 criteria. She concluded in her report:

“In summary, taking together his presentation, the reviewed documentation, results of current and previous cognitive testing, and his responses to the above fitness criteria, there is a lack of convincing evidence that he is unfit to be tried. Furthermore, on the balance of probabilities, it is considered that Mr Bidner is fit to be tried, from a cognitive standpoint. Mr Bidner appears motivated to put forth an exaggerated display of memory impairment and mood disturbance, which appears inconsistent with his presentation in other contexts. It is likely that he is aware that this means of defence has worked in his favour previously” (Ex. A3, p.28).

65. Ms Barhon maintained that opinion in her evidence on 5 December 2022. Of the likelihood that the accused was malingering, she said:

“Mr Bidner's performance across testing was considered to be unreliable and strongly indicative of someone putting forth the presentation of some ‑ or trying to exaggerate or in my opinion feign cognitive impairment in particular a memory impairment.  This was in particular not only the fact that that gave me the impression across all of his scores with such variability that would not be expected but on the fact that five separate measures designed to detect effort and poor motivation and exaggerated impairment he performed inconsistent with any clinical diagnosis and was only in keeping with someone intentionally feigning an impairment” (T6:36).

66. The variability in the accused’s performance during tests administered by Ms Barhon and earlier is significant”. Ms Barhon observed that:

“[…] my opinion of him is also reflected in the previous neuropsychological reports which I don't believe suggest that there is significant impairments, particularly in domains such as memory.  I think also that his inconsistency in his ability to respond to various Presser questions such as the ones listed in my report, there's inconsistency across reports in his ability to do so and then suddenly not do so, which is not explainable by any organic cause” (T7:28).

67. She noted that the various test results were:

“[…] all completely inconsistent.  Not only is it the case that on all effort measures those designed to detect poor effort and attempted exaggeration of an impairment did he perform inconsistent with any medical neurological or psychiatric condition, but on further testing his performances were extremely varied and not in clear keeping with what was done with what he was able to achieve previously.  For example, on a test of his ability to learn and remember verbal information, at both the assessments of Dr Hepner and Dr Pulman he performed in the low average to average range, so completely within normal limits.  On my assessment of Mr Bidner he performed more poorly than someone with severe Alzheimer's disease” (T13:40).

68. When asked in cross-examination if there was any possible cause for the accused’s inconsistent performance other than malingering, Ms Barhon said:

“There is no explanation at all for the way that he performed, other than an intentional exaggeration.  As you'll see in my report, I've even commented on some of the analysis of those scores in that they are not in keeping or they're in keeping with zero per cent of people with traumatic brain injury, mood disorder, anxiety disorder, learning disorder, ADHD, so on.  There is no one in that population that they have reviewed in their normative data that would be in keeping with this (T14:44).

69. The accused called evidence from Dr Chew and Mr Borenstein.

70. Dr Chew saw the accused on 14 November 2022 via an audio-visual link. He was comprehensively briefed with relevant material.

71. In the history he recorded Dr Chew noted that the accused “was involved in a high speed motorbike accident which resulted in an acquired brain injury” (Ex. 1, p.4). In addressing the s 36 MHCIFP Act criteria Dr Chew noted that the accused was unable to say without prompting what charges had been brought against him, although he did understand the pleas available to him. He had no idea of the purpose of a criminal trial, or of the role of a jury or the right to challenge. He understood the role of his lawyers, and of the judge and prosecution, but could not explain the concept of evidence, or give an account of how he would defend the charges. The accused said the court proceedings made him feels so stressed that he thought about harming himself. In that context the accused said that he had been treated in the past, in 2010 or 2011, with anti-depressant medication, with limited effect. He reported memory difficulties since the crash in 2016.

72. On examination the accused was fully oriented, and spoke normally although his affect was flat. He reported being depressed and anxious. Dr Chew concluded that the accused has a neurocognitive disorder due to a TBI, a major depressive disorder, and an amphetamine use disorder in remission in custody.

73. Referring to the 2017 testing of the accused, during which no concerns were raised about motivation, and an outcome suggesting some impairment, Dr Chew observed that the accused’s presentation to him was consistent with “a significant TBI” and he concluded that the accused was unfit to be tried.

74. In his evidence on 5 December 2022 Dr Chew referred to the information concerning a possible brain injury to the accused in 2016:

“So, the hospital admission notes quite clearly note, you know, quite clearly note the accident, the decreased level of consciousness, and he had multiple, he had multiple fractures and injuries throughout his body, and he presented with symptoms of head injury at that time, so he certainly had a significant traumatic, traumatic injury, there's no doubt about that” (T23:45).

75. He accepted in cross-examination, however, with some reluctance, that methylamphetamine intoxication could have some impact on the assessment of an individual’s GCS, and thus that there could have been some impact on the score of 12 or 13 given to the accused by paramedics attending the crash scene. He also accepted that there was nothing in the JHH medical and other notes that referred to a head injury or concerns held as to a possible head injury.

76. Noting that “a significant amount” (T27:26) of his assessment of the accused’s fitness was based upon his self-report Dr Chew accepted that, if that self-report was not accurate, it would affect his opinion. He also accepted that, if the accused had discussed matters connected with his trial in the recorded telephone calls Ex. A8, that would:

“[…] demonstrate a bit more understanding than what he demonstrated to me when put on the spot in the artificiality of the interview, yes” (T32:44).

77. On that basis, Dr Chew accepted that it was possible that the accused had feigned some lack of understanding. The doctor was not able to fully reconcile the accused’s apparent presentation when speaking on the telephone with family about his legal matters, and his incomprehension concerning those same matters when speaking to Dr Chew. He said:

“I think it is certainly difficult to square those two things off, so this certainly is ‑ certainly particularly if I accept all the propositions that you did make, it seemed to demonstrate more understanding in these telephone transcripts.  Certainly you outlined one possibility before that he is exaggerating to me the extent of his deficits.  I need to also ‑ I have no doubt and that he does have, as I have made clear, some underlying deficits, the extent of which is not entirely clear” (T36:22).

78. Dr Chew suggested that the extent of the accused’s depression could explain the variation in his performance, together with the fact that he would be more comfortable when speaking with family members. He explained the apparently eloquent letters written by the accused in March 2022 by suggesting that someone other than the accused had written them.

79. Sam Borenstein’s report of 3 December 2022 is Ex. 2 in the proceedings. Mr Borenstein had seen the accused in March 2022 for the purposes of assessing him prior to District Court sentence proceedings, at which time he found the accused to be cognitively intact. When Mr Borenstein saw the accused again earlier this month he found a stark difference in the accused’s presentation, with the accused unable to converse with him by answering his questions.

80. Mr Borenstein observed that, since his March 2022 assessment, he had received other information that “confirmed” that the accused was “involved in a high speed motorbike accident on 26 April 2016, which resulted in him suffering a Traumatic Brain Injury of moderate severity, which gave rise to depression, memory difficulties and forgetfulness” (Ex. 2, p. 3).

81. When Mr Borenstein saw the accused on 3 December 2022 it was by way of an audio-visual link and extensive testing was not possible via that means of communication. Mr Borenstein asked the accused some general questions, such as the location of the prisons in which he had been held, but his responses were vague. The accused said he was not sure whether he suffered memory difficulties. He could not say whether he had been involved in motor vehicle crashes.

82. When answering questions designed to assess the accused’s understanding of the legal proceedings the accused could not give an account of the purpose of the proceedings, saying only that Court was “when people do something”. He did not know the purpose of a judge and, although he understood that his lawyers would defend him, he could not say how he would instruct them. He reported that he was depressed and thought the stress of the proceedings would be too much for him.

83. On assessment Mr Borenstein found varied results were returned by the accused to those tests that could be administered. The accused performed well on a counting exercise, Serial Sevens, but did very poorly on a controlled word association test.

84. Mr Borenstein thought it necessary to seek information from the accused’s family, and spoke to Michael Bidner, the accused’s father, by telephone. Mr Bidner told Mr Borenstein that the accused had become vague after the 2016 crash, and that “doctors” had told Mr Bidner that his son “would not get better”. The accused’s memory was said to be “shocking” (Ex. 2, p. 6).

85. Noting that the clinical picture was “complicated” Mr Borenstein concluded that the accused was not fit to be tried.

86. In his oral evidence on 6 December 2022 Mr Borenstein observed that the accused’s presentation on 3 December, when he saw him for about 70 minutes via an audio-visual link, was very different to his March 2022 presentation. He said:

“[…] he was very vague in his response, he was often responding to questions with I'm not sure, I don't know, it was difficult to elicit information from him, and he was ‑ when pressed on certain questions he had to be pressed in order to come up with an answer.  His answers were very simplistic.  He wasn't as spontaneous in his communication as he was when I interviewed him back in March of 2022 (T47:17).

87. Although Mr Borenstein did not think the accused presented as exaggerating his deficits, he was surprised by the marked variability in the accused’s results on the limited testing able to be done. He noted the difference in the accused’s presentation between March 2022, when there was nothing to suggest any cognitive impairment, and December 2022, when impairment was pronounced, a difference that was both marked and inexplicable. Mr Borenstein speculated that the experience of being imprisoned may have led to the apparent deterioration in the accused’s cognition but accepted that the accused had been incarcerated for about two years prior to his March assessment. He suggested:

“[…] something may have happened in the nine months which may have led to a regression if you like in his emotional and cognitive state, but certainly how he presented to me is that he ‑ staying, and I repeat, is very different to how he presented in March of this year.  If you ask for an explanation, I'm coming up with possible explanations but I don't know what the exact explanation for that would be” (T56:04).

88. The inconsistent presentation led Mr Borenstein to seek out information from the accused’s father. He said in evidence that he gave considerable emphasis to the “independent observations” of the accused’s father as to the accused’s functional impairment.

89. On balance Mr Borenstein thought that:

“[…] with the combined effects of chronic and very substantial methylamphetamine addiction and dependency and use, together with traumatic brain injury and a history of depression that is commented to by Dr Furst, would, you know, add up to, as I say in my report, a neurocognitive deficit (T58:30).”

90. He acknowledged however, that the accused had been reportedly abstinent from drug use since entering custody over two years ago, and so heavy drug use could not have contributed to cognitive decline between March and December 2022. He acknowledged the possibility that the explanation for the differing presentation was malingering.

91. Despite his concession of the possibility of feigned impairment, Mr Borenstein noted that the most significant features to which he had regard in forming his opinion was the accused’s inability to answer questions or give an account of himself when interviewed by professionals recently, together with the account of the accused’s capacity given by his father.

Determination

92. The task of the Court is to consider the available evidence in light of the fitness criteria and determine, on the balance of probabilities, the question of fitness.

93. The circumstances in which the issue of fitness was raised is a matter of some relevance, to which the Court is entitled to have regard.

94. The question of the accused’s potential unfitness was (properly) raised by his current legal representatives in November 2022 after the lawyers became aware of 2016 and 2017 assessments of the accused’s fitness. Nothing in his presentation to his lawyers raised any concern as to the accused’s ability to participate in his trial.

95. The accused was represented when he appeared before this Court in December 2021 for arraignment, and no concern was raised then with the Court as to the accused’s capacity to understand the charge or enter pleas. The accused was arraigned and entered pleas of not guilty. There is no reason to conclude that there was any basis at all for concern as to his capacity to do so at the time.

96. In early 2022 the accused, represented by lawyers, was able to understand charges against him of recklessly inflicting grievous bodily harm and using an offensive weapon with intent, enter pleas of guilty to the charges, and instruct his lawyers as to the case to be presented on sentence on his behalf. The accused wrote well constructed, expressive, and even eloquent letters to the sentencing court that demonstrated good syntax, vocabulary, and grammar, and in which he displayed at least average intelligence.

97. The Court cannot proceed, as Dr Chew did, on a speculative assumption that the accused was not the author of the letters. The letters were expressed as having been written by the accused, they bore his name, and they were presented to the sentencing court as letters he had written in which he conveyed his thoughts about significant matters such as remorse, insight into his crimes, and his prospects. If he did not write them, it might be thought that he was a participant in a conspiracy to pervert the course of justice. That is not a conclusion which the Court can draw on the evidence.

98. The author of the two letters Exs. A5 and A6 cannot have been a cognitively impaired man. Plainly, that was the view of the lawyers acting for him with respect to the March sentence matters. Equally significantly, it was also the view of Mr Borenstein, who found the accused to be cognitively intact in March 2022.

99. Those acting for the accused in this matter, including highly experienced senior counsel, plainly did not regard him as impaired during conferences with the accused that must have been conducted over the months, to ready his case for trial. The impetus for an investigation of the accused’s fitness came not from the accused’s presentation to his legal representatives, and not from any difficulty they experienced in obtaining instructions from him, but rather, from the historical record of events in 2016 and 2017, a record that the legal representatives first became aware of in November 2022.

100. With that as the recent background to the question of the accused’s fitness, it is useful to consider the events of 2016 and 2017, and how it was that fitness became an issue before a court at that time.

101. Although both Dr Chew and Mr Borenstein asserted that the record established that the accused had been in a high speed crash that resulted in an acquired brain injury, the record does not bear out the assertion. In fact, the only suggestion that the accused may have sustained a brain injury in the 2016 crash was based upon his combativeness with paramedics who attended him, and his slightly reduced GCS of 12 or 13 out of a possible 15 for a fully conscious and alert individual. Both are arguably explained by the accused’s high level of methylamphetamine intoxication.

102. In any event, the possibility of a brain injury was fully investigated at JHH and discounted. A CT scan revealed no head or brain injury, and an examination of the accused’s head on presentation similarly noted no injuries of any sort. There was no behavioural manifestation that pointed to the possibility of a brain injury, and no member of the clinical staff at JHH expressed any concern as to the possibility of a TBI. In short, although it came to be understood that the accused had sustained a brain injury in the 2016 crash, there is no objective evidence of that at all.

103. The accused himself subsequently reported to others that he had a brain injury, such as on his presentation at the Rutherford North Medical Centre in September 2017, but that is a very different thing from there being clinical evidence of it.

104. That the accused may have perceived it as to his benefit to claim amnesia and impairment for the outstanding charges against him must be at least possible. Certainly, the possibility of a brain injury was raised not by a doctor or other clinician in a clinical setting, but rather by the accused’s then legal representatives in a legal setting, following the 2016 crash.

105. Once the question had been raised, the accused was assessed by various experts.

106. On objective assessment, that is, by the administration of neuropsychological tests measuring cognition, relatively soon after the 2016 crash and at a time when the accused was using illicit drugs heavily, the accused was judged to be fit to be tried, albeit with a need for him to be supported at trial. Both Dr Hepner and Dr Pullman concluded that the accused was fit. Both noted some level of impairment, but not to an extent that rendered the accused unfit to be tried.

107. The first expert opinion of unfitness was given by Dr Furst following the 2016 crash, and it is clear that Dr Furst’s conclusions were substantially based upon the accused’s self-report and presentation to him, rather than upon objectively verifiable data. At the time of Dr Furst’s assessment, the accused was using significant quantities of methylamphetamine daily.

108. Although the accused had been able to recall the circumstances surrounding the commission of the then outstanding charges when he spoke to Dr Hepner, and give an account of matters relevant to the criteria given in R v Presser [1958] VR 45, he could not do so when speaking to Dr Furst, even though the consultations were only one week apart. There is no evidence to establish or even suggest that any event occurred during that week to alter the accused’s presentation as between the consultations with Dr Furst, and then Dr Hepner. It may be that the difference is in the mode of assessment, with Dr Furst relying on the accused’s account of himself, and Dr Hepner administering objective cognitive testing.

109. Thereafter, every expert who assessed or examined the accused had access to Dr Furst’s reports, and took his opinion as to fitness into account.

110. With respect to the recent assessments, similar issues arise, in that the accused presented differently between March and November / December 2022, and differently at least to some extent in his presentation to each of Ms Barhon, Dr Chew, and Mr Borenstein. There is in my conclusion no credible physiological, psychiatric, or psychological explanation for the differences. Whilst Dr Chew posited that the accused’s depression might explain the differences, I accept Ms Barhon’s evidence that, to have a significant adverse effect on cognition, any depression would have to be extremely severe. There is no evidence that the accused suffers from severe depression.

111. Equally, there is no credible explanation for how the accused’s state of knowledge and understanding of the criminal justice system and matters relevant to s 36 of the MHCIFP Act could fluctuate between a good understanding, and an understanding that rises no higher than that court proceedings are “when people do something”. Within the space of about two weeks, between 14 November 2022 when the accused was assessed by Dr Chew, to 3 December 2022 when Mr Borenstein conducted his second assessment, the accused went from understanding the role of a judge to having no idea what that role might be. When directly asked about that difference in evidence on 6 December 2022 Mr Borenstein could give no clinical explanation for it (T61:42).

112. Both Dr Chew and Mr Borenstein accepted the accused’s presentation at face value, without any forensic examination of it. Both proceeded on the mistaken understanding that the accused had suffered a TBI in 2016 and had been left with an acquired brain injury. Neither conducted any testing that might reveal malingering.

113. When confronted with other evidence that suggested that the accused performed rather better in ordinary life than he did when being formally assessed, both Dr Chew and Mr Borenstein accepted that the accused appeared to have a better memory and understanding of legal matters when speaking to family than he had presented to each on assessment.

114. During the 2020 telephone conversations the accused demonstrated a good understanding of the role of evidence and witnesses, and the significance of particular evidence and particular witnesses to his case. He seemed to understand enough to take steps to interfere with evidence and witnesses, a strategy entirely inconsistent with a failure to comprehend the meaning and concept of evidence. He demonstrated an understanding of the significance of evidence that might raise a reasonable doubt, of the role of the Director of Public Prosecutions in presenting a case against him, and of the need for capable legal representation. He displayed a capacity to remember, with no sign of a seriously impaired memory. Nothing in the accused’s conversations with family recorded in Ex. A8 points to a conclusion that he is not fit to be tried.

115. Perhaps it might be argued that his cognitive capacity has deteriorated since the conversations were recorded in 2020, but any deterioration could only be in the last nine months, since the accused was cognitively intact in March 2022. There is no evidence of any adverse event or documented psychological regression that could explain such a rapid and marked deterioration.

116. Accepting the expertise of each, on the whole of the evidence the Court has concluded that the opinions of Dr Chew and Mr Borenstein each rest on flawed foundations, being the incorrect understanding that the accused had sustained a proven TBI in 2016, uncritical acceptance of the accused’s presentation, and – in Mr Borenstein’s case - uncritical acceptance of the account of the accused’s poor functioning that was given to him by the accused’s father on 3 December 2022.

117. There is objective evidence which casts significant doubt on the reliability of each of those features.

118. As already noted, there is in fact no clinical evidence at all that the accused suffered a brain injury in 2016 or on any other occasion. The JHH records tend to show that he did not.

119. Whilst Dr Hepner and Dr Pullman both thought some level of brain injury was suggested by their respective test results, both had been briefed on the basis that the accused may have sustained such an injury. It may be that the level of impairment that the tests separately administered by Dr Hepner and Dr Pullman revealed was related to drug use rather than a road crash. Mr Borenstein suggested that heavy and long term drug abuse ordinarily led to brain damage, and the accused was using methylamphetamine heavily when assessed by Drs Hepner, Pullman, and Furst, and had been for a number of years. Even so, the neuropsychological testing did not lead to a conclusion that the accused was unfit, but only that he had some level of impairment in some areas of functioning.

120. The accused’s presentation is not objective or reliable evidence of impairment, particularly in circumstances where it varies over time and between assessors, with no credible explanation for the variation, and where it is in marked contrast to his presentation in other settings, such as in conversation with family in 2020, and in his account of himself to the District Court in March. The Court does not accept that mild to moderate depression, or a substance abuse disorder that is in remission, could account for those extraordinary differences in asserted understanding and memory, or lack of understanding and memory. The accused’s self-report and presentation must be set aside as an unreliable basis upon which to conclude that he is not fit to be tried.

121. The final feature referred to as of significance was the reliance Mr Borenstein placed on what he regarded as the “independent” account of the accused’s capacity given by his father. There is, however, good reason to question the reliability of Mr Bidner’s account of the accused’s capacity in the community. In March 2022 Mr Bidner gave a different portrayal of his son’s capacity, reporting to the District Court with apparent pride in a letter tendered on sentence the accused’s role as a mentor to other prisoners in the context of drug rehabilitation and prison life.

122. It is difficult to reconcile Mr Bidner’s description of his son’s impairment to Mr Borenstein with his account of the accused’s mentoring role, or indeed with the assertion of the accused’s sister to the District Court that the accused is an intelligent man.

123. That Mr Bidner is not a reliable historian is strongly suggested by the content of some of his conversations with his son in the recorded prison calls, conversations in which Mr Bidner raised no objection when apparently asked to interfere with a Crown witness, or find and dispose of some compromising item the accused wanted him to get rid of. If Mr Bidner was prepared to interfere with a witness on the accused’s behalf for example, it does not require a leap of logic to conclude that he might be prepared to support his son in asserting a level of impairment that was not objectively present.

124. Whilst Dr Chew thought that there was no benefit to the accused in feigning or exaggerating impairment, and gave that as a reason to discount the possibility that this is what has occurred, the evidence establishes that the accused has benefited in the past from conclusions of unfitness.

125. The charges for which he was to stand trial in 2016 were ultimately the subject of a no further proceedings direction by the Director of Public Prosecutions: the Court was advised that the delay in bringing the matter to trial due to the exploration of the fitness issue was so great that critical Crown witnesses ceased to be available, and the prosecution could not proceed. Further, in 2018 the accused was discharged by the Local Court at Cessnock without adverse finding, conviction or penalty, on the basis of his impairment. Thus, whilst doctors with forensic experience or lawyers might see no advantage to an accused person in being found unfit, the accused’s lived experience is to the contrary.

126. Ultimately, having considered all the evidence, that which the Court concludes to be reliable is that which is based on objective clinical assessment, unaffected by matters easy of manipulation, such as presentation, that being the evidence of Ms Barhon.

127. On Ms Barhon’s assessment, and bearing in mind the absence of any concerns experienced by legal representatives as to the accused’s fitness in March 2022, or over the course of these proceedings prior to receipt of the 2016 -17 fitness material in November 2022, the Court concludes on the balance of probabilities that the accused is fit to be tried. The accused may have some level of impairment in some aspects of cognitive function, as Drs Hepner and Pullman concluded in 2016/17, but he has the capacity to meet each of the features referred to in s 36(1) of the MHCIFP Act.

128. In reaching that conclusion I have had regard to the fact that the trial is expected to take three to four weeks, and that the accused is capably represented by senior counsel and a solicitor. Should counsel feel that the accused needed additional support during the trial proceedings, there are agencies that routinely provide assistance of that nature, and an application can be made to the Court for flexible sitting hours or other measures as necessary.

129. Having found that the accused is fit to be tried, s 46 of the MHCIFP Act applies, and the usual criminal procedures are to recommence. The matter should be fixed for trial.

130. The Court makes the following orders:

1. The Court finds, on the balance of probabilities, that the accused, Adam Bidner, is fit to be tried for the murder of Shane Mears;

2. The matter is adjourned for mention to fix a trial date at 10am on 8 December 2022 before the Supreme Court, with leave to the parties to appear via AVL;

3. The accused is excused if legally represented;

4. Bail is not applied for and is refused.          

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Amendments

10 August 2023 - Publication restriction lifted.

Decision last updated: 10 August 2023