R v Gillard - [2006] SASC 46

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v GILLARD
Reasons for Ruling of The Honourable Justice Nyland
23 February 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ACCUSED UNFIT TO PLEAD OR INCAPABLE DURING TRIAL
Accused charged with two counts of murder and one count of attempted murder - whether accused fit to stand trial - accused suffering from mental illness, namely paranoid schizophrenia - neuropsychological assessment and psychiatric examination - significant cognitive impairment as well as mental illness - whether accused mentally unfit pursuant to s 269H CLCA - whether accused able to understand or respond rationally to the charge - whether able to understand the nature of proceedings or to follow evidence in the course of proceedings. Held: accused mentally unfit to stand trial.
Criminal Law Consolidation Act 1935 (SA) ss 269H, 269K, 269L , referred to.
R v Sexton (2000) 77 SASR 405; R v Presser [1958] VR 45; Kesavarajah v R (1994) 181 CLR 230, applied.
Gillard v The Queen (2003) 219 CLR 1, discussed.

R v GILLARD
[2006] SASC 46
RULING ON FITNESS TO STAND TRIAL

Kevin Wayne Gillard (Gillard) was jointly charged with Gerald David Preston on an information dated 15 September 1997 with having committed at Lonsdale on 15 August 1996: (1) the murder of Leslie Shane Knowles; (2) the murder of Timothy Lawrence Richards; and (3) the attempted murder of Robert Kym Traegar.
Background:
The trial with respect to those matters commenced before a judge and jury on 15 June 1998. It concluded on 27 October 1998, when both accused were found guilty of all three charges. Gillard was sentenced to be imprisoned for life and a non-parole period was fixed at 25 years. An appeal against those convictions was dismissed by the Court of Criminal Appeal on 21 December 2000.
On 12 November 2003, however, the High Court allowed an appeal by Gillard against the order of dismissal of the Court of Criminal Appeal. The High Court set aside the order of the Court of Criminal Appeal and ordered that Gillard’s convictions be quashed and that there be a new trial[1].
[1] Gillard v The Queen (2003) 219 CLR 1
On 15 September 2004, Gillard was arraigned in the Supreme Court and pleaded not guilty to all of the charges against him. A voir dire hearing was then listed for 6 December 2004. Before that date, however, there were a number of directions hearings in the course of which counsel endeavoured inter alia to crystallize the issues for determination on the voir dire. Throughout that period defence counsel also endeavoured to clarify issues relating to Gillard’s mental health.
On 3 December 2004, following an examination of Gillard by Dr Raeside, a psychiatrist, an application was made by Gillard’s counsel for the adjournment of the voir dire in order to obtain a full psychiatric assessment of Gillard in addition to having neuropsychological assessments carried out.
Eventually, on 18 January 2005, I made an order that the voir dire commence on 1 February 2005.
On 1 February 2005, Gillard was arraigned at the commencement of the voir dire and pleaded not guilty to the charges against him. The voir dire then proceeded and evidence was called by the prosecution on 1, 2 and 3 February 2005.
When the matter was called on for hearing on 4 February 2005, however, counsel for Gillard asked that the matter be stood over until the afternoon due to problems with Gillard’s health. Arrangements were then made for Dr Raeside to attend court to assess him. When the matter resumed in the afternoon, Gillard’s counsel advised that Dr Raeside had briefly attended upon Gillard during the period of the adjournment and had expressed the opinion that Gillard was at that time psychiatrically unwell and not fit to instruct counsel. As a result of that advice, the matter was stood over to 7 February 2005 to enable Dr Raeside to prepare a written report as to those matters.
On 7 February 2005, counsel tendered a report of Dr Raeside dated 5 February 2005 in which Dr Raeside expressed the opinion that Gillard was currently unfit to plead. He said that Gillard had presented at interview as co-operative, quietly spoken and settled in demeanour. He did not display any overt psychotic disorder and appeared superficially able to discuss his current legal situation. More specific questioning, however, revealed underlying delusional and psychotic phenomena. This included a belief that he could not get a fair trial because of his conviction that one of the police witnesses, an officer named Sherry, who gave evidence on the voir dire as to the circumstances in which Gillard was arrested and interviewed by the police in Queensland, was an impostor whose real name was Geoff Black and who was involved with underworld organised crime. Gillard mentioned having lots of money that he could use to pay someone to sit in court in his place who could then feed back to him what was being said.
Dr Raeside considered that at that time Gillard’s delusional ideas and other psychotic phenomena interfered with his ability to provide rational and reasonable instructions to his defence counsel. Dr Raeside indicated in that report, however, that Gillard could potentially regain fitness with more intensive psychiatric treatment. He considered that Gillard should be admitted promptly to James Nash House for further assessment and modification of the dose of his anti-psychotic medication or change to another medication. He also recommended that the case be adjourned for about three months pending treatment at James Nash House. I thereafter ordered that the reports be provided in accordance with s 269K of the Criminal Law Consolidation Act 1935 (CLCA), directed to the issue of Gillard’s fitness to stand trial.
The matter was adjourned on a number of occasions thereafter as delays were encountered with respect to obtaining the necessary reports. I was later informed that it was not possible to transfer Gillard to James Nash House despite my request that such a transfer be expedited in accordance with Dr Raeside’s recommendation, as admission thereto was based on medical need, and Gillard was not seen as a high priority. In the circumstances there did not appear to be any reasonable prospect that Gillard would regain the necessary mental capacity should the matter be adjourned for any further length of time[2] and I therefore decided to proceed with the trial of Gillard’s fitness to plead. The trial of that matter was eventually listed for hearing and commenced before me as judge sitting alone on 14 December 2005. At the commencement of that hearing I made an order pursuant to s 269L CLCA that the investigation of Gillard’s fitness to stand trial be separately tried and that it be tried first before any other issue in the case.
[2] s 269K(2) CLCA
At the commencement of the trial I was provided with a book which was a consolidation of all of the medical reports (Exhibit P1), namely the following:
Report of Dr Nambiar, dated 5 May 2005.
Further report of Dr Nambiar, dated 23 August 2005.
Report of Dr Raeside, dated 5 February 2005.
Further report of Dr Raeside, dated 27 May 2005.
Further report of Dr Raeside, dated 8 June 2005.
Report of Mr Field, a neuropsychologist, dated 27 May 2005.
Report of Dr Wood, a neuropsychologist, dated 29 December 2005.
Further report of Dr Wood, dated 10 August 2005.
Each of the report providers also gave oral evidence with respect to his examination and assessment of Gillard.
Gillard’s Prior History:
It is convenient to start by summarising some of Gillard’s prior history which is relatively uncontentious. At the present time Gillard is aged about 42 years. He was born in the United Kingdom and came to Australia with his parents when he was aged about seven. He is the second youngest of eight children. He has a long offender history commencing at the age of about nine. He completed Form 3 at school in Victoria. He has a history of anti-social behaviour at school. He was expelled on some occasions and was incarcerated in juvenile youth training centres. He has never married although he believes he has up to six children by different partners. He does not have contact with any of them. He has a long history of amphetamine and alcohol abuse and has spent many years in gaol for various offences committed prior to the matters which are the subject of these proceedings.
Gillard has been in custody since his arrest 9 December 1996 with respect to these charges.
Gillard has reported to various health professionals a history of head injuries. This includes being struck on the back of the head by a golf ball when he was nine and his brother having thrown a metal bin at him which split the skin of his scalp on another occasion. He also has mentioned a blow to his head in a motor cycle accident when he was about 16, being struck on the head with an iron bar and the butt of a replica pistol, and being kicked in the forehead with steel capped boots. A CT head scan apparently did not disclose any evidence of severe brain injury but the possibility of frontal lobe damage has not been discounted.
In 1995, Gillard was the victim of a stabbing in which his lung was punctured. This resulted in the development of a post traumatic stress disorder. In the year 2000, while in custody subsequent to the earlier trial, he was diagnosed with chronic paranoid schizophrenia with features of persecutory disillusions and auditory hallucinations. The medical records also indicate episodes of repeated self harm with sharp objects since 1996, suicidal ideation, and self harm lacerations of the arms in 1997. Gillard was admitted to James Nash House in July 2002 and again between December 2002 and January 2003 with acute exacerbation of his schizophrenia. There was also the occasion in February 2005 when he was seen by Dr Raeside at court. He was again diagnosed with a further acute episode in the latter part of last year. As a result of that episode, Dr Nambiar arranged for Gillard to be admitted to the infirmary at Yatala Labour Prison on 10 November 2005 where he remained until 25 November 2005.
The neurological examinations:
Gillard underwent a neuropsychological examination by Mr Field on 10 April 2005 and Dr Wood on 17 December 2004 and 2 August 2005. Gillard was subjected by them to a variety of well recognised psychometric tests to assess the level of his intellectual functioning. Although there was some variation in their findings, there was substantial consistency in the final assessment made by both of them. Mr Field referred to the presence of a very significant acquired organic brain dysfunction and described Gillard as a man “of probable low average premorbid intellectual endowment”.
Dr Wood described Gillard as functioning at handicapped level on most tasks and said that he had a borderline level of intelligence which placed him in the bottom two percentile of the population. He considered that Gillard was “cognitively impaired as a result of a combination of the effects of a closed head injury, the chronic consumption of alcohol and the chronic psychiatric disorder”.
Both Mr Field and Dr Wood considered that Gillard was unfit to stand trial. There was some degree of confusion in the evidence as to which aspect of the test for unfitness each relied upon to reach that conclusion, but I think it is fair to say that, by the end of cross-examination both were of the view that Gillard would be “unable to follow the evidence or the course of the proceedings”[3].
[3] s 269H(c) CLCA
I will return to that aspect of the matter shortly. I am, however, satisfied as a result of their evidence that Gillard has a significant cognitive impairment which is static and not likely to improve, and that his cognitive disability includes difficulties with short term memory.
The real issue, however, which needs to be addressed in this matter rises out of a difference of opinion between Dr Nambiar and Dr Raeside as to Gillard’s fitness to stand trial.
Dr Nambiar:
Dr Nambiar is a consultant psychiatrist at James Nash House and has worked in that capacity since about 1995. Part of Dr Nambiar’s duties includes conducting a clinic at the Yatala Labour Prison. Since about 2000 he has seen Gillard there about every two to three months, although on occasions when Gillard has been unwell he has seen him more often. Dr Nambiar said that Gillard has a mental illness, namely schizophrenia, which was first diagnosed in about the year 2000. Notwithstanding that diagnosis, Dr Nambiar was of the opinion that Gillard was currently fit to stand trial. When he examined Gillard in the infirmary at Yatala Labour Prison on 3 November 2005, however, Gillard presented in a highly animated state and was delusional. Gillard believed that officers were standing over him, that he had large amounts of money and he was the grandson of Harold Holt. Dr Nambiar considered that Gillard’s delusional thinking impaired his concentration and his ability to process information so that at that time he was unfit to stand trial. It took approximately six weeks for those symptoms to resolve and Dr Nambiar considered that for the entirety of that period, Gillard would have been unfit to stand trial.
Dr Nambiar said that the two most common causes of Gillard becoming psychotic which he had noted were either stress or failure to take medication. He understood that a criminal trial was likely to cause Gillard stress. Nevertheless, he considered that, if appropriately managed, he would be able to cope with a trial. He said[4]:
[4] Tr 8-9
Q.Accepting that it’s likely to cause him stress, do you still hold the view that he’s fit to participate in such a trial.
A.Yes, providing that he’s able to have only brief periods whereby is levels of anxiety don’t reach a level where it would then be stressful and therefore cause him to decompensate again.
Q.In your opinion, how might he be assisted at a trial to avoid that stress and then to avoid that risk of decompensation.
A.If [the] information could be explained to him in a simple way and he’s given an opportunity to rest, then proceed again.
Q.Are you able to express an opinion as to how regular the breaks in the day might need to be to minimise the risk of him decompensating.
A.It really would depend on what is being discussed on that day and how stressful he would find that.
Q.Would it be helpful, for example, to sit no more than say 45 minutes at a time and have a break of about half an hour at the end of that period.
A.If I gauged it based on the experience I have had with him when I have interviewed him, he’s able to tolerate at least up to 45 minutes, possibly an hour.
Dr Nambiar acknowledged that Gillard was prone to become mentally fatigued due to his medication and the nature of his illness which might cause difficulty in concentrating. He said concentrating is a stress and that causes fatigue but if Gillard lost concentration he would simply need a break. In his report dated 5 May 2005, Dr Nambiar referred to his interview with Gillard which had lasted about one hour and 20 minutes. He said throughout that period Gillard was able to maintain concentration and respond appropriately. Dr Nambiar said[5]:
I decided that provided provision was made for him to have adequate rest and that things were explained to him and recapped to him by his solicitor, that in fact he would remain fit to plead.
[5] Tr 14
Dr Nambiar agreed, however, that Gillard was at risk of becoming psychotic in the future and it was not possible to predict how often that might happen. Dr Nambiar indicated that it would be helpful for the court not to sit on the Wednesday of each week during the trial, as that appeared to be the day on which Dr Nambiar conducts his clinic at Yatala and that would provide an opportunity for Dr Nambiar to check Gillard’s mental state.
Dr Nambiar said that throughout his clinical assessment Gillard had been able to display an ability to recount his past in terms of his developmental years and in terms of his life experiences relatively well and had also been able to give an account of his legal proceedings. He considered that he would have a better memory for information that was of higher importance to him. He said[6]:
In that clearly he understands that he is in the middle of a trial in which he has been charged with murder, he has obviously an investment in participating in that, and therefore it is of high importance to him.
[6] Tr 24
Dr Nambiar was prepared to accept the factual conclusions reached by Dr Wood and Mr Field in their reports, absent their ultimate opinion as to Gillard’s fitness to plead, but considered that when Gillard’s schizophrenia was under control and he was no longer having an acute relapse and was in relative remission that, despite the fact that he had an underlying cognitive impairment which was static, he was still able to satisfy the limited test of fitness to plead.
Dr Raeside:
Dr Raeside examined Gillard on three occasions in 1998 when the charges were first before the court. He again examined him on 4 February 2005 in the holding cells at court on the occasion earlier mentioned. That resulted in the report dated 5 February 2005, in which Dr Raeside expressed the opinion that Gillard was then unfit to plead.
Dr Raeside again interviewed Gillard on 10 May 2005, following which he provided the report dated 27 May 2005 in which he indicated that Gillard had made a significant improvement in the intervening period. He appeared to have responded to the combination of regular anti-psychotic medication, and probably also a reduction in stress associated with delay in his trial. At that time Dr Raeside indicated that Gillard was fit to plead and stand trial, although he remained cautious about his ability to maintain that fitness, given his past history and the likely stress associated with any trial.
Dr Raeside provided an addendum report dated 8 June 2005, as a result of receiving a copy of Mr Field’s report of 27 May 2005. Dr Raeside said that having read that report he considered it appropriate to provide an addendum report -
… by way of altering my opinion and suggesting that even though Mr Gillard had improved clinically this mainly represents improvement in his Paranoid Schizophrenia with the acute symptoms now settled. I would be prepared to accept that by virtue of his underlying acquired brain dysfunction he remains unfit to plead and is likely to do so permanently.
When giving evidence, Dr Raeside explained his change of opinion in the following way[7]:
If I could look at it as a visual scale of 50 to 100% of probabilities. My understanding is that greater than 50% is more likely than not. Probably in those earlier opinions I’m effectively saying I think he’s 55% fit, so barely fit. Then, with the extra information about his cognitive impairment, I think that brought it down to 45% or 40%. I didn’t change my view to a large degree but put it back below the probability mark. So, therefore, the other factor, as I’d been expressing, because before he may or may not be fit on a particular day, or at trial, was the cognitive impairment is relatively fixed and unlikely to change, unlikely to respond to any particular intervention; so, therefore, I altered my opinion that he was unfit to plead based on those two prongs of his cognitive impairment, as well as his variable psychotic state.
[7] Tr 157
He went on to say that having seen the information provided by Dr Wood[8]:
It further confirmed that decision to alter my opinion. I know there is some variations in what he found compared to what Mr Field found, but essentially they both find him – my understanding was they both found him cognitively impaired, evidence of frontal lobe brain damage, memory impairment and, further, from my point of view, that also makes him more vulnerable to relapse of his psychosis during periods of stress, as in his trial, therefore that further confirmed my altered opinion.
… that in coming to my opinion it’s an added bit of information that I was cautious/hesitant in suggesting, even on his best day, he is barely fit to plead. Then given further information I feel, with more information, he is fit to plead based on his cognitive impairment and the state on that fluctuation of his mental state, which is obviously what’s been causing concern to the court, that he fluctuates. What is also tells me, he’s more vulnerable to a relapse of his psychosis under stress because of the cognitive impairment; in other words, his coping abilities are even more impaired than I thought they were and it would be almost certain that he would decompensate at the time of trial and would become unfit again.
[8] Tr 158-159

Dr Raeside referred to the medication currently being prescribed to control Gillard’s psychotic state. He described it as a very large dose and said[9]:
… antipsychotic drugs are major tranquillisers. It would tranquillise your brain functions, quiet it down, and produce a degree of cognitive impairment themselves, even in someone without cognitive impairment. One of the problems in people taking the medication, they feel dull, zombiish, because of the medication, and often they won’t take it. The doses that Mr Gillard is on would be expected to produce considerable cognitive impairment on their own.
[9] Tr 160
Dr Raeside did not consider that a regime of regular breaks and an ability to consult with legal advisers in the course of the trial, as suggested by Dr Nambiar, would overcome Gillard’s difficulties in coping with the stress of the trial and the required concentration. He said Gillard’s situation was that he was not taking in any information in the first place and that would only get worse if Gillard was required to sit through a trial for a longer period of time.
When asked in cross-examination about which test made Gillard unfit, Dr Raeside said[10]:
A.    I think, throughout this, he’s always had a reasonable understanding of the role of the court and its particular officers, the charges he’s facing, and the nature of the trial. In fact, he’s the one that wanted a retrial that leads us to now. So I think that he was okay on this limb of the test. My concern has always been his ability to follow the course of proceedings and any evidence given at trial, as well as his ability to provide reasonable and rational instructions to his defence counsel in his defence.
Q.    Just to be clear, how does him being chronically psychotic affect his ability to follow the evidence.
A.    Because of his concentration, and attention, because of his, the way in which he interprets sorry, I use the word ‘interprets’ the evidence as well as any discussion that occurs. Also his perceptions, that is if he’s experiencing hallucinations he may believe he’s heard something that was never actually said let alone misinterpreting things, so certainly someone who suffers from a psychotic illness, if they are experiencing psychotic symptoms, would render them very vulnerable in a trial situation to follow those proceedings accurately.
[10] Tr 170-171
Dr Raeside expressed the opinion that even if Gillard appeared to be fit at the beginning of his trial, he would only be “barely fit” and the probability was that he would become unfit as the trial progressed, possibly within a few days, although that might not become evident until sometime thereafter.
The legal test:
I am satisfied that Gillard suffers from a mental illness, namely paranoid schizophrenia but that does not necessarily mean he is unfit for trial. The test contained in s 269H CLCA is “mental unfitness”. That section provides:
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.
As Gray J (with whom the other members of the court agreed) said in R v Sexton[11]:
Mental unfitness is identified as a disorder or impairment of a person’s mental process so that the person is, in general terms, unable to understand the trial process and their part in that process.
A lack of understanding can result from a disordered or impaired mental process. It can arise from many causes other than mental illness. A mental process can be disordered or impaired without there being an underlying illness. This is the rationale of the common law rule, that lack of comprehension, regardless of cause is the relevant criterion to determine unfitness for trial. Section 269H encapsulates the same criterion as the common law in regard to the determination of unfitness for trial.
[11] (2000) 77 SASR 405 at 414
The common law test for fitness to stand trial is set out by Smith J in R v Presser[12] as follows:
He needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any.
[12] [1958] VR 45 at 48
This test was approved by the majority of the High Court in Kesavarajah v R[13]:
In R. v Presser, Smith J elaborated the minimum standards with which an accused must comply before he or she can be tried without unfairness or injustice … . Those standards, which are based on the well-known explanation given by Alderson B to the jury in R v Pritchard …, require the ability (1) to understand the nature of the charge; (2) to plead to the charge and to exercise the right of challenge; (3) to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged; (4) to follow the course of the proceedings; (5) to understand the substantial effect of any evidence that may be given in support of the prosecution; and (6) to make a defence or answer the charge.
[13] (1994) 181 CLR 230 at 245
Conclusion:
There is no dispute that Gillard has a significant cognitive impairment as well as a mental illness, namely paranoid schizophrenia. Notwithstanding those matters, he appears to have an understanding of the charges against him and other matters relating to the trial, such as the role of the judge and the prosecutor. He has demonstrated an ability to tell Dr Nambiar about his legal proceedings and Dr Nambiar thought his memory with respect to those matters was relatively good. He obviously has a high interest in these proceedings and the evidence suggests that his memory of matters in which he has an interest is better than his memory for other things.
The prosecution submitted that this trial would be shorter than the last which had involved two accused and had some unique features such as counsel’s instructions being terminated on more than one occasion. It is further suggested that the issues in this trial are not particularly complex and if, for example, there was a dispute by Gillard about what he said in his interviews with the police he would be able to refresh his memory from the recordings of those interviews.
The prosecution submitted that if a regime of breaks was put into place as suggested by Dr Nambiar, Gillard’s health could be monitored and he would be able to follow the course of the proceedings and make his defence to the charges against him. The presumption of mental fitness had therefore not been displaced.
In my opinion, however, limited weight can be given to the ability of Gillard to relate to Dr Nambiar in the interview situation as that would clearly be less stressful than having to appear in court in a trial before a jury, and even Dr Nambiar conceded that the court proceedings would be stressful. Although Dr Nambiar had contact with Gillard over a lengthy period of time, it appears that he only did so in his capacity as visiting psychiatrist at Yatala in what undoubtedly was a busy clinic. I do not think, therefore, that he is necessarily in any better situation than Dr Raeside to make an assessment as to Gillard’s fitness. Furthermore, Dr Raeside had the advantage of seeing Gillard both in December 2004 and again in February 2005 at a time when court proceedings were underway.
Although the prosecution suggest that Gillard would be able to refresh his memory with respect to the interviews with the police from the recordings of them, it is of some significance that Gillard experienced an acute episode of schizophrenia at the time of the voir dire hearing in February 2005, and that hearing was primarily concerned with what Gillard said to the police at the time of his arrest. Although Gillard did not display in court any overt signs that he was having difficulty in following the evidence which related to those interviews, there is no doubt, as a result of Dr Raeside’s examination, that Gillard was in fact seriously unwell in the course of that hearing. He was delusional and he was incapable of giving rational instructions to his legal advisers about what had taken place in those interviews or any other matters and it is unclear how long he was in that state.
Gillard also experienced a further acute episode in November 2005. This was shortly before the matter was due to be re-heard in court and may well have related to the proximity of the next hearing. There is no evidence as to what triggered the episodes in July 2002 and December 2002, although it appears that the High Court proceedings were underway throughout 2002 as the High Court granted special leave to Gillard to appeal to that court in August of that year.
I am satisfied that the large doses of medication required to control Gillard’s schizophrenia add to his difficulty in concentration and ability to give instructions. It would also affect his ability to give rational evidence at his trial. Although a reduction in that medication would probably assist Gillard in being more alert at the trial, I accept Dr Raeside’s evidence that such a reduction would be likely to cause a relapse of the psychosis[14].
[14] Tr 164
The prosecution pointed out that apart from evidence on the voir dire, Gillard did not give evidence at the earlier trial, and whether he would do so at this trial was presently unknown. The prosecution argue, however, that any difficulties in giving evidence could be dealt with by giving Gillard the frequent breaks suggested by Dr Nambiar.
Section 269H CLCA does not make any reference to the ability to give evidence, but Smith J in Presser, in the passage cited above, refers to the ability [for an accused] “to make his defence or answer to the charge”. He also refers to a person having “sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel”. In R v Wahlstedt[15], DCJ Rice referred to this passage from Presser and found that it incorporated into the fitness test an ability to give evidence on oath should that election be made. After discussing a number of cases DCJ Rice said[16]:
The trial process, amongst other things, comprehends all facets that involve the accused, from the ability to understand the charge and plea right through to the actual making of the defence. The trial process does not finish at the close of the case for the prosecution. To make a defence or answer the charge obviously includes the ability to provide instructions before the trial and as it proceeds but also, apart from electing to give evidence, the ability to give instructions about the calling of any witnesses. The possibility that an accused person may elect not to give evidence is not to the point. He or she must have the ability to do so when the time comes.
It is also important to understand what is not embraced by the concept of making a defence or answer to the charge. As already touched upon, it does not include making an ‘able’ defence. One way or another language and communication difficulties can be overcome. It is not necessary that the accused understand the legal concepts other than those necessary for the other requirements of Presser (supra).
Having said those things, it would have to be a very unusual case where an accused fulfils the criteria of Presser (supra), but then would not have the ability to give evidence upon such an election. However, such a situation is nonetheless possible.
One final matter. The ability to give evidence on oath may differ depending upon the nature of the case. An accused who is not unfit for the purposes of a trial because there are a limited range of facts and issues, may well be unfit for the purposes of a long, complicated fraud trial. Much will depend upon the individual circumstances.
[15] (2003) 231 LSJS 140
[16] At pp 143-144
I respectfully agree with those remarks. It is also my view that the test for fitness to stand trial encompasses an ability to give evidence on oath should that election be made.
Although the suggested regime of breaks every 45 minutes to an hour with an opportunity for counsel to explain information to Gillard during the break might be workable for part of the trial, it would be completely unworkable should Gillard elect to give evidence. In particular, once Gillard was giving evidence in cross-examination, he would be precluded from speaking to his legal advisers about that evidence. He would not therefore be able to have matters “explained … and recapped to him by his solicitor” as postulated by Dr Nambiar. The assessment of Gillard by the jury will be a significant issue in this trial as appears from the decision of the High Court in allowing Gillard’s appeal. The High Court said (per Gleeson CJ and Callinan J)[17]:
In the present case, while it was well open to a jury to find that the appellant foresaw that Preston might shoot Knowles, or others in the repair shop, it was not inevitable that, properly instructed, and given manslaughter as an alternative to consider, they would find that he foresaw that Preston would act with intent to kill or cause grievous bodily harm. It is difficult for this Court to know what the jury would have made of the appellant. There was evidence as to his personality and background that indicates strongly that he is not a clear and capable thinker. He did not give evidence, but the jury saw him over a long period, and heard acquaintances describe his capabilities. They had his interview with the police. Much would depend upon their assessment of him. That is quintessentially a jury question. A loaded gun used in the course of an armed robbery is obviously dangerous, and it is easy to foresee that it might be discharged. But it is not inevitable that a jury would find that the appellant subjectively foresaw that Preston would shoot with intent to kill or cause grievous bodily harm. When an appellate court is concerned with an issue about the subjective foresight of a person who may be regarded by a jury as being of limited capacity, there is a danger in concluding too readily that a jury inevitably would reach a certain finding, especially where that conclusion is based on logic, and on a rational assessment of objective circumstances which the person involved might not have made. (emphasis added)
[17] Gillard v The Queen (supra) (at p 15 [15])
Although the prosecution submit that the factual matters in this case are not particularly complex, it must be borne in mind that Gillard is charged with three very serious crimes and it is impossible to predict in advance all the issues which might arise in the course of the trial.
Bearing in mind the evidence of Mr Field and Dr Wood as to the level of Gillard’s cognitive functioning, together with the evidence as to his mental illness, I accept the evidence of Dr Raeside that even if Gillard was to be fit at the beginning of his trial, he would only be “barely fit” and the probability is that within a few days he would become unfit.
The evidence suggests that if Gillard became unfit in the course of the trial it might not be immediately apparent. It is, however, essential that counsel be able to obtain rational instructions from him throughout the whole of the proceedings. Both Dr Nambiar and Dr Raeside agreed that there was little to no possibility of Gillard being admitted to James Nash House for the duration of the trial (as was initially suggested by Dr Raeside) which would have assisted in monitoring his mental health. The prior history of acute episodes suggests that once such an episode occurs, Gillard remains unfit for a lengthy period of time. A delay of a sufficient length to allow for his recovery could not realistically be accommodated within a trial by jury.
In all the circumstances, I consider that Gillard would not be able to respond rationally to the charge[18] or follow the evidence or the course of the proceedings[19], and I record a finding to that effect. I therefore find, on the balance of probabilities, that Gillard is mentally unfit to stand trial.
[18] s 269H(a) CLCA
[19] s 269H(c) CLCA