R v Kola No. DCCRM-02-323

R v Kola
[2004] SADC 77
Judge Muecke
Criminal

By Information filed 18` April 2002 Albina Kola (“Mrs Kola”) and Lec Kola (“the accused”) were jointly charged with the following offences:
First Count
Statement of Offence
Taking Part in the Production of Cannabis. (Section 32(1)(b) of the Controlled Substances Act, 1984)
Particulars of Offence
Albina Kola, Lec Kola and Arber Lika between the 1st day of November, 2000 and the 21st day of May, 2001 (later amended to 12th May, 2001) at Grange, knowingly took part in the production of cannabis, a prohibited substance.
It is further alleged that the said offence involved in excess of 19 cannabis plants.
Second Count
Statement of Offence
Taking Part in the Production of Cannabis. (Ibid).
Particulars of Offence
Albina Kola and Lec Kola between the 1st day of March, 2001 and the 22nd day of May, 2001 at Fulham Gardens, knowingly took part in the production of cannabis, a prohibited substance.
Third Count
Statement of Offence
Possessing Cannabis for Sale. (Section 32(1)(e) of the Controlled Substances Act, 1984).
Particulars of Offence
Albina Kola and Lec Kola on the 21st day of May, 2001 at Fulham Gardens, knowingly had cannabis, a prohibited substance, in his (sic) possession for the purpose of selling it to another person.
It is further alleged that the said offence involved in excess of 10kg of cannabis.
The allegations in the first count involved twenty cannabis plants police found growing hydroponically in two bedrooms in a house at Grange Road, Grange when police searched that house on 11 May 2001. The house was a rental property and it was alleged that the owner of the house identified Mrs Kola and the accused as being persons associated with the rental of the house during the time of the alleged offending. Further, a neighbour alleged seeing an elderly couple in a car registered to the accused coming almost daily to the house until about the end of March 2001. It was also alleged that the neighbour said that photographs of Mrs Kola and the accused were similar to or closest to the elderly persons she had seen at the house.
The second and third counts involved three mature cannabis plants police found growing hydroponically in a bedroom at a house at Fulham Gardens when they went to that house on 21 May 2001. It was alleged that police located cannabis weighing approximately 11.5 kg at the house. It was further alleged that Mrs Kola and the accused were living at the Fulham Gardens house when police attended there on 21 May 2001.
On 13 March 2002 Mrs Kola, the accused and Arber Lika (“Mr Lika”) were all committed for trial in this court. On 22 April 2002 they were arraigned and all pleaded not guilty. The trial was ultimately set to commence on Monday 17 March 2003.
Before the trial commenced on 17 March 2003 counsel for the accused provided the Judge to whom the trial was allocated two reports of a forensic psychologist Mr Richard Balfour. They were dated 14 March 2003 and 17 March 2003. The reports were said to raise issues as to the accused’s mental unfitness to stand trial.
Having read the two reports the Judge ordered an investigation into the accused’s mental fitness to stand trial, he having concluded that there were reasonable grounds to suppose that the accused was mentally unfit to stand trial. Before formally embarking of such an investigation, however, the Judge required the production of a further report from a neuropsychologist on the accused’s mental condition as it related to his mental unfitness to stand trial.
Pursuant to this order a report of Mr Mark Reid dated 17 April 2003 was prepared and provided to the court.
On 13 August 2003 a trial date was fixed for Monday 15 March 2004.
On 14 October 2003 another Judge of this court ordered, pursuant to s269WA of the Criminal Law Consolidation Act 1935, that the accused be examined by Mr Reid no later than 15 February 2004 for the purpose of Mr Reid providing a report on such examination by no later than 15 March 2004. Pursuant to that order Mr Reid prepared a report dated 2 February 2004 and forwarded that report to the court.
The trial came on before me on Monday 15 March 2004. The trial of Mrs Kola and Mr Lika was adjourned with the intention that their trial would commence after I had heard and determined issues relating to the accused’s mental unfitness to stand trial. By a letter to the court dated 6 August 2003 the Legal Services Commission of South Australia on behalf of the accused had notified the court that the accused elected to have the investigation into his mental fitness to stand trial to be dealt with by a Judge of the court sitting alone.
The procedure to be followed
The procedure for an investigation by the court into a defendant’s mental unfitness to stand trial is contained within PART 8A - MENTAL IMPAIRMENT of the Criminal Law Consolidation Act 1935. I now set out what I consider to be an appropriate (and in most cases the preferred) procedure and steps for such an investigation or trial (both words are used in various parts of Part 8A). (The sections referred to are those within Part 8A):
1The defendant is not arraigned.
2The court may order an investigation into the defendant’s mental fitness to stand trial if there are reasonable grounds to suppose that a person is mentally unfit to stand trial (s269J).
3Before formally embarking on such an investigation the court may require production of psychiatric or other expert reports that may exist on the defendant’s condition and may, if it thinks fit, itself have a report prepared on the defendant’s mental condition (s269K(1)).
4Election for the investigation into the defendant’s fitness to stand trial to be dealt with by a judge sitting alone (s269B(1)).
5The court orders that the defendant’s metal fitness to stand trial be separately tried before all other issues (including a trial on the objective elements of the alleged offences) (s269L).
6The court hears evidence and representations put to it by the prosecution and the defence on the question of the defendant’s mental fitness to stand trial (s269M.A(1)(a)).
A person’s mental fitness to stand trial is to be presumed unless it is established, on an investigation, that he is mentally unfit to stand trial (s269I).
This may infer that it is the defendant who bears the onus on an investigation, if anyone does.
7The court must decide whether it has been established, on the balance of probabilities, that the defendant is mentally unfit to stand trial (s269M.A(3)).
This involves being satisfied if the person’s mental processes are so disordered or impaired that he is unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based; or unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings (s269H).
8If the court decides that the defendant is mentally unfit to stand trial it must record a finding to that effect (s269M.A(3)(a)).
If the court decides that the defendant is not mentally unfit to stand trial the court must proceed with the trial in the normal way (s269M.A(3)(b)). The balance of the proceedings will be outside the purview of Part 8A (R v Miller (No 2) (2000) 76 SASR 560, 569)).
9If the court records a finding to the effect that the defendant is mentally unfit to stand trial it must hear evidence and representations put by the prosecution and the defence relevant to the question whether a finding should be recorded under s269M that the objective elements of the offence are established.
(It will then have to consider how this aspect of the matter will proceed (whether by jury or by judge alone), and when it will occur, where, for example, there are other accused to be tried jointly on the same Information. It may be able to proceed before the same jury which tries any joint accused. Quaere whether a mentally unfit accused can elect to have the investigation as to whether the objective elements are established dealt with by a Judge sitting alone when a joint accused does not so elect (see R v Nicolitsi (1985) 123 LSJS 346). Separate trials may need to be ordered.)
Upon the commencement of the investigation into the accused’s mental fitness to stand trial counsel for both the DPP and the defence agreed that Judges of this court had validly ordered such an investigation on 17 March 2003 and had required the production of a neuropsychological report on 17 March 2003 (pursuant to s269K(1)) and on 14 October 2003 pursuant to s269WA. Counsel for the accused agreed that the accused had elected for an investigation into his fitness to stand trial to be dealt with by a Judge sitting alone. Accordingly steps 2, 3 and 4 identified above had preceded the commencement of my investigation on 15 March 2004.
I then ordered that the accused’s mental fitness to stand trial be separately tried before all other issues (including a trial on the objective elements of the alleged offences). This order was step 5 of the procedure identified above. I then indicated I would hear evidence and representations put to the court by the prosecution and the defence on the question of the accused’s mental fitness to stand trial. This was step 6. I had to decide whether it had been established, on the balance of probabilities, that the accused was mentally unfit to stand trial. This was step 7. That involved a consideration of the matters identified in step 7.
Some legal considerations as to step 7 (s269H)
S269H provides as follows:
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.
The South Australian Court of Criminal Appeal considered section 269H in R v Sexton (2000) 77 SASR 405. I note that Part 8A does not define the phrase “mental processes” or the words “disordered” or “impaired”. In Sexton Gray J observed that the section made reference to mental unfitness, in contrast to mental illness. He said (at pages 414 - 416):
Mental unfitness is identified as a disorder or impairment to 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.
In Eastman v The Queen (2000) 74 ALJR 915 at [64-65] Gaudron J spoke of the common law guarantee of a fair trial and that an accused person not be tried "unless he or she is fit to plead". She said:-
"Traditionally, an accused person has not been put on trial unless fit to plead because of 'the humanity of the law of England falling into that which common humanity, without any written law would suggest, has prescribed, that no man shall be called upon to make his defence at a time when his mind is in that situation as not to appear capable of so doing'. That statement may indicate a positive and independent right on the part of an accused not to be tried unless fit to plead. It is unnecessary to decide whether that is so. It is sufficient to approach the present matter on the basis that the common law guarantees an accused person a fair trial according to law and that one aspect of that guarantee is that a criminal trial cannot proceed unless the accused is fit to plead.
It is in the context of the common law's guarantee of a fair trial according to law that s 428E of the Crimes Act 1900 (ACT) is to be construed. It is well settled that a statute is not to be construed as abrogating fundamental common law principles unless that is manifestly clear from its terms or as a matter of necessary implication. There is nothing in s 428E to suggest any departure from the common law's guarantee of a fair trial according to law or, if there be a difference, the common law's requirement that an accused person (is) not to be tried unless he or she is fit to plead. On that basis, s 428E is to be construed as doing no more than directing the trial judge as to the steps to be taken if 'on the trial of a person ... the issue of fitness to plead ... is raised'. It says nothing as to the situation if, for whatever reason, there is a question as to the accused's fitness to plead but the issue is not raised at the trial."
At common law the issue of fitness to plead is left to the jury.
Nothing in section 269H or Part 8A suggests that there should be any departure from the recognition of an accused's right to a determination that he or she is unfit to stand trial, as provided for, and protected by, the common law.
Unfitness at Common Law
An early discussion of fitness to plead can be found in the case of R v Pritchard (1836) 7 Car & P 303; 173 ER 135 where it was said in general terms that a person is fit to plead if he or she has sufficient understanding to comprehend the course of proceedings on the trial, so as to make a proper defence to the charge. As was said in Ngatayi v The Queen (1980) 147 CLR (at 6 – 7):
"His Lordship was there explaining to a jury the effect of s 2 of the Criminal Lunatics Act 1800 (39 and 40 Geo III c 94) which contained the words:
'if any person indicted for any offence shall be insane, and shall upon arraignment be found so to be by a jury lawfully empanelled for that purpose, so that such person cannot be tried upon such indictment ...'
Alderson B said in R v Prichard at 304, 135:
'The question is, whether the prisoner has sufficient understanding to comprehend the nature of this trial, so as to make a proper defence to the charge.'
He went on to say that there are three points to be inquired into, of which the third is:
'whether he [the prisoner] is of sufficient intellect to comprehend the course of proceedings on the trial, so as to make a proper defence - to know that he might challenge any of you to whom he may object - and to comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation.'
The word 'comprehend' in this passage meant no more than 'understand': see R v Podola [1960] 1 QB 325 at 354.
In R v Pritchard the prisoner was not insane but deaf and dumb. And the words of s 2 of the Criminal Lunatics Act 'have in many cases since 1800 been construed as including persons who are not insane within the M'Naughten Rules, but who by reason of some physical or mental condition, cannot follow the proceedings at the trial and so cannot make a proper defence in those proceedings': R v Podola at 353."
Smith J in R v Presser [1958] VR 45, said (at 48) that, to be fit to plead, a person must 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 ... 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 ... [H]e must, ... 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.”
These comments have been approved by the High Court in Ngatayi v The Queen (1980) 147 CLR 1, Kesavarajah v The Queen (1994) 181 CLR 230 and Eastman v The Queen (2000) 74 ALJR 915.
In Eastman v The Queen a number of members of the High Court considered the content of the expression fitness to plead and its significance to the trial process (Gleeson CJ at [21-23]; Gauldron J at [57-63, 86]; Gummow J at [172]; Hayne J at [296–298]; Callinan J at [332-333]. Gaudron (at [59]) said:
“A number of matters should be noted with respect to what was said in Presser. The first is that the question whether a person is fit to plead may arise for reasons other than mental illness. It may arise, for example, because a person is deaf and dumb (see Ebatarinja v Deland (1998) 194 CLR 444) or, more generally, because language difficulties make it impossible for him or her to make a defence (see R v Grant [1975] WAR 163; Ngatayi v The Queen at 9 per Gibbs, Mason and Wilson JJ; R vBegum (1985) 93 Cr App R 96). The second matter to be noted is that fitness to plead is a concept that derives from the common law. Usually, however, there are statutory provisions which bear on the determination of that issue.”
Hayne J (at [298]) said:
"No doubt in deciding whether the accused may not be fit to plead or to stand trial, regard must be had to the relevant tests of fitness. As was pointed out by the majority in Kesavarajah v The Queen (1994) 181 CLR 230 at 245; 123 ALR 463 at common law those tests were based on the explanation given by Alderson B to the jury in R v Pritchard and 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: see also R v Presser (at 48) per Smith J. Properly understood, these tests may not be very difficult to meet."
Unfitness to be tried at common law is not limited to cases of mental illness. There are broader considerations, including one's inability to communicate and participate in the trial process. An inability to communicate or comprehend may be based upon physical disabilities alone, such as hearing and speech impediments. The common law does not require the presence of any psychological or intellectual impairment.
(See also for as a useful historical perspective: R v Mailes (2001) 126 A Crim R 20, 38ff, NSWCCA)
An accused’s fitness to stand trial is to be determined at the date of the trial, but having regard to the likely length of the trial and to “what the accused’s condition will or is likely to be during the course of the trial” (Kesavarajah v The Queen (1994) 181 CLR 230, 246).
Martin J considered section 269H in R v Miller [No 2] (2000) 209 LSJS 20 (Reasons for Decision, 2 June 2000). He said (at pp27-30):
The criteria by which the issue of mental fitness to stand trial is to be determined are set out in s 269H. That section refers to whether an accused is “unable to understand”, unable “to respond rationally”, “unable to exercise” or unable “to follow the evidence”. No guidance is given as to the extent of the understanding or capacities in these respects that an accused is required to possess in order to be fit to stand trial. In Ngatayi v The Queen (1980) 147 CLR 1, the High Court was concerned with a provision in the Criminal Code of Western Australia that required consideration of whether an accused was “capable of understanding the proceedings at the trial so as to be able to make a proper defence...”. In the judgment of the majority, the following observations were made (p 8):
“The test looks to the capacity of the accused to understand the proceedings, - but complete understanding may require intelligence of quite a high order, particularly in cases where intricate legal questions arise. It is notorious that many crimes are committed by persons of low intelligence, but it has never been thought that a person can escape trial simply by showing that he is of low intelligence. We respectfully agree with the view expressed by Smith J. in Reg. v Presser [[1958] V.R. 45, at p.48.] that the test needs to be applied “in a reasonable and commonsense fashion”. Smith J. went on to say that there are certain minimum standards which the accused needs to equal before he can be tried without unfairness or injustice, but added that the accused “need not have the mental capacity to make an able defence”.
Later in judgment, their Honours observed (p 9):
“The section does not mean that an accused can only be tried if he is capable, unaided, of understanding the proceedings so as to be able to make a proper defence. This is self-evident when the incapacity to understand the proceedings is due to an inability to understand the language in which the proceedings are conducted. In such a case, if an interpreter is available the incapacity is removed. Similarly, in deciding whether an accused is capable of understanding the proceedings so as to be able to make a proper defence it is relevant that he is defended by counsel. If the accused is able to understand the evidence, and to instruct his counsel as to the facts of the case, no unfairness or injustice will generally be occasioned by the fact that the accused does not know, and cannot understand, the law. With the assistance of counsel he will usually be able to make a proper defence. That of course is the test which s.631 provides: is the accused capable of understanding the proceedings at the trial, so as to be able to make a proper defence? The section does not require that an accused, before he can be tried, must be capable of understanding the law which governs his case, if that lack of capacity does not render him unable to make a proper defence.”
Assistance is also gained from the decision of Smith J in R v Presser [1958] VR 45. His Honour was concerned with determining fitness to stand trial and expressed the test in the following terms (p 48):
“And the question, I consider, is whether the accused, because of mental defect, fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him.”
By way of elaboration, his Honour said (p 48):
“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.”

The law guarantees accused persons a fair trial according to law. One aspect of that guarantee is that a criminal trial cannot proceed unless the accused is mentally fit to stand trial.
Accused persons in South Australia are accorded this guarantee by the law providing that a person is mentally unfit to stand trial on a charge of an offence if that person’s mental processes are so disordered or impaired that the person is unable to understand the charge or the allegations on which it is based; is unable to exercise procedural rights at trial; or is unable to understand the nature of the trial proceedings or to follow the evidence or the course of the trial.
In deciding these matters I must first be satisfied that as at the time of the trial the accused’s mental processes are disordered or impaired. A person’s mental processes can be disordered or impaired without there being any underlying mental illness. The law does not require the presence of any psychological or intellectual impairment. Fairness to accused people is to be considered in a broader context than this. The phrase “a person’s mental processes are so disordered or impaired” must be applied in a reasonable and commonsense fashion, and it must be applied in the context that it has any one of certain consequences.
If I am satisfied that the accused’s mental processes are disordered or impaired, he is mentally unfit to stand trial only if his disordered or impaired mental processes result in at least one of the following consequences.
First, it must result in the accused being unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based. This does not mean that an accused person can only be tried if he is capable, unaided, of understanding all the legal niceties that may relate to the charge. It means no more than the accused must be able to understand what it is that it is alleged to be the offence he has committed and what the allegations are that are said to make out the offence. The accused must have sufficient capacity to be able to decide what defence he will rely on and be able to give his counsel the necessary instructions to answer the charge. He must be able to give his version of the facts in answer to the allegations which are said to constitute the offence.
Secondly and alternatively, the accused must, as a consequence of his disordered or impaired mental processes, be unable to exercise procedural rights which he has as part of the trial process (such as, for example, the right to challenge jurors). He must also be unable to give rational instructions about the exercise of those procedural rights.
Thirdly and alternatively, the accused must, as a consequence of his disordered or impaired mental processes, be unable to understand the nature of the trial proceedings, or to follow the evidence or the course of the trial. This does not mean that the accused must have a complete understanding of the whole of the processes of the trial. That may require intelligence of quite a high order, particularly in cases where intricate legal questions arise. He needs, however, to understand generally the nature of the proceeding, namely, that it is an enquiry as to whether he did what he is charged with. He needs to be able to understand what is going on in court in a general sense, although he need not understand the purpose of all the various court formalities. He needs to be able to understand the substantial affect of any evidence that may be given against him.
Evidence and representations on the accused’s mental fitness to stand trial
The investigation before me proceeded for a number of days. Counsel for the accused presented evidence on behalf of the accused first. He tendered four written reports of Mr Richard Balfour. Mr Balfour gave oral evidence and was cross-examined by counsel for the DPP. Other exhibits were tendered during Mr Balfour’s evidence. Mrs Kola was called by counsel for the accused to give oral evidence and be cross-examined. The accused did not give evidence.
Counsel for the DPP tendered the two reports of Mr Mark Reid. He called Mr Reid to give oral evidence. He was cross-examined by counsel for the accused.
I heard counsel’s representations on the afternoon of Thursday 25 March 2004. At their conclusion I decided that it had not been established, on the balance of probabilities, that the accused was mentally unfit to stand trial. I indicated that I would publish my reasons later if necessary. I indicated that I would proceed with the trial in the normal way and that that would occur at 3.30pm that day. At 3.40pm that day I was informed that “the matter had resolved entirely with respect to Mr and Mrs Kola and they will plead to the three offences as charged and that will simply leave a trial outstanding in respect of Mr Lika”. Mrs Kola and the accused were then arraigned. They each pleaded guilty to each of the three counts on the Information.
(A trial by jury then proceeded on the one count involving Mr Lika. On Wednesday 31 March 2004 he was found not guilty.)
Mr Balfour psychologically assessed the accused on 4 and 11 March 2003. On the latter date he also had a brief interview with Mrs Kola. He had certain documentation supplied to him, including the accused’s medical records from the Queen Elizabeth Hospital (Exhibit D7) and letters from the accused’s general practitioner Dr M Chandiok dated 29 May 2001 and 17 January 2002 (Exhibit D8). The medical records of the Queen Elizabeth Hospital and Dr Chandiok’s letter of 17 May 2002 referred to the accused having suffered a stroke in March 2001. The letter from Dr Chandiok also referred to the accused having been relatively well until March 2001 ‘when he suffered a small stroke which affected his right hand and leg and speech. The limb weakness has resolved but his speech remains slightly affected.’ Dr Chandiok wrote that the accused also appeared ‘to have developed some short-term memory loss since this episode. On mini-mental testing this month (January 2002) he scored 22/30 which indicates mild impairment of cognitive function’. Dr Chandiok wrote that the accused had not suffered any further stroke and the cause of his mild cognitive impairment ‘has not yet been established’. He wrote that that needed investigating. It is not clear from either of the two letters which comprise Exhibit D8 whether Dr Chandiok consulted with the accused through an Albanian interpreter. Neither letter refers to an interpreter having been required. Dr Chandiok’s letter dated 17 January 2002 was written to the accused’s solicitor whom he had consulted in his attempt to remain permanently in Australia.
Mr Balfour assessed the accused with the assistance of an accredited Albanian interpreter. In a report dated 17 March 2003 (Exhibit D2) he referred to the history he obtained and what he was told by Mrs Kola. He summarised the accused’s case notes from the Queen Elizabeth Hospital which referred to the accused’s stroke on 22 March 2001. The notes referred to the fact that the accused’s neurological signs had appeared to resolve quickly and to his being discharged from hospital on 28 March 2001.
Mr Balfour then assessed the accused’s mental fitness to stand trial. He expressed the opinion that there was no clinical evidence to suggest that the accused suffered from a psychotic illness (break with reality), intellectual disability, drug or alcohol abuse problems, or a serious personality disorder. He wrote that the accused’s psychological profile was one of a 68 year old Albanian man of normal intelligence with adequate literacy and numeracy skills in Albanian. There was no evidence to suggest that prior to having a stroke in March 2001 the accused suffered from any major psychopathology. His main mental health problem was that he was moderately depressed about his uncertain future due to the rejection of his applications for Australian residency.
Mr Balfour wrote in March 2003 that whilst the accused appeared to make a reasonable recovery from the physical manifestations of his stroke in March 2001 he continues to suffer from significant cognitive impairment. Mr Balfour referred to Mrs Kola having reported to him that the accused’s personality had changed since the stroke in March 2001. Mrs Kola had reported to Mr Balfour that the accused’s living skills had deteriorated with regard to his personal hygiene, and that he had developed a very poor short-term memory that leads him to become confused. He requires constant care from her and the family.
Mr Balfour reported that the results of his neuropsychological assessment of the accused confirmed that the accused has a very poor short-term memory of visuo-spatial information. Because of this he is prone to misinterpreting information and gives misleading responses. Mr Balfour wrote that it was possible that the accused was consciously exaggerating his degree of cognitive impairment to avoid serious legal consequences. This was difficult to assess formally using psychological tests due to cultural factors. He believed, however, that the psychological test results represented a valid and reliable estimate of the accused cognitive functioning.
Mr Balfour described the accused’s level of cognitive impairment as being in the severe range. Mrs Kola’s reports about her husband’s deteriorating personality, cognitive functioning and personal hygiene were all consistent, in Mr Balfour’s view, with a dementing illness. Mr Balfour believed that the accused met the diagnostic criteria for suffering from a dementia. In his report of 17 March 2003 he wrote that the accused probably had dementia of the Alzheimer type or a Vascular Dementia.
Mr Balfour wrote that he believed the severity of the accused’s cognitive impairment was great enough to make him unfit to stand trial. He wrote that when the allegations against him are broadly explained to him, the accused is able to say whether they are true or not. However, he is unable to respond rationally to the specific parts of the allegations. The accused was adamant that he had nothing to do with drugs, but was unable to sufficiently answer specific questions about the allegations. Mr Balfour wrote that the accused’s understanding of the criminal-justice system has been distorted by his legal experiences in Albania. He had learned there that it is better to acquiesce in a court of law rather than to dissent and aggravate his situation. Mr Balfour believed the accused’s level of cognitive function was severe enough to make him unable to exercise his procedural rights in a courtroom. For example, he would be unable to challenge jurors. Mr Balfour wrote that he believed that the accused was not capable of sufficiently following the gist of events in a courtroom even with the assistance of a skilled interpreter and rest breaks.
Finally, Mr Balfour wrote that he believed that the accused would not become fit to stand trial within the ensuing twelve months but, rather, will progressively deteriorate and become increasingly cognitively impaired.
Mr Balfour interviewed the accused in a clinical setting and tested his cognitive function over four hours on 17 February 2004. He also again interviewed Mrs Kola. He had by then been supplied with copies of psychological reports prepared by Mr Mark Reid dated 17 April 2003 and 2 February 2004. Mr Balfour again had the assistance of an Albanian interpreter. Subsequent to his interviews and testing Mr Balfour wrote a report dated 11 March 2004 (Exhibit D4).
In that report Mr Balfour referred to his interview with Mrs Kola. He set out what Mrs Kola told him and her belief that the accused had deteriorated. Mr Balfour then set out the results of the cognitive testing he did of the accused. Mr Balfour referred to what he called ‘the main limitations of the current assessment’. He stated he could only sample a limited number of the accused’s cognitive domains due to the cultural limitations of cognitive testing. He said he was unable to test the accused’s verbal memory functioning or psychometrically obtain an estimate of his pre-morbid intelligence. He wrote that there are no psychometrically valid and culturally appropriate tests of malingering that he could administer to the accused.
Mr Balfour wrote that there did not appear to him to be any evidence of improvement in the accused’s cognitive functioning since his previous assessment. He continued to be significantly cognitively impaired. However, there was also no evidence on cognitive testing that the accused had dramatically deteriorated since he had last assessed him.
Mr Balfour wrote that ‘malingering is a possibility that has to be considered in all psychological assessments in a forensic context’. Mr Balfour was unaware, however, of any culturally relevant psychological tests that could be used to psychometrically evaluate that possibility when assessing the accused. He referred to a test to which Mr Reid had referred in his reports. This was the Test of Memory Malingering (‘the TOMM test’). Mr Balfour’s opinion was that although the TOMM test was an excellent test of effort on memory testing to evaluate the possibility that an individual is malingering, there was no research regarding the effects of culture on a particular individual’s performance on the TOMM test. He therefore decided that the TOMM test would be of little assistance in assessing the accused and did not use that test.
Mr Balfour ultimately expressed the opinion that he continued to believe that the accused was severely cognitively impaired. In his later report of 11 March 2004, however, he expressed the opinion that the most probable aetiology is a vascular dementia. He believed that on the balance of probabilities the accused was unfit to stand trial. In this regard he referred to similar matters to which he had made reference in his earlier report.
Mr Balfour gave oral evidence at the investigation before me.
He said that he was not able to give the accused any psychological tests that measure pre-morbid intellectual function. He was not aware of any such test that had been developed for Albanians. However, by looking at the accused’s education and his former occupation as a truck driver, Mr Balfour estimated that the accused was of average to low-average intelligence. He said that it was important to establish pre‑morbid level of intelligence so as to have a comparison upon which to consider the results of various tests on cognitive function.
Mr Balfour agreed that, although he made some attempt to remove possible cultural biases from his testing, he could not say that he was entirely successful in doing so. He said the research showed that people can perform poorly on cognitive tests due to cultural factors.
Mr Balfour said that the TOMM test was one he routinely used in his work but it was one that caused him the most professional anxiety. That was because it was a test that had great implications about the credibility of a defendant in court. He explained that his view was that malingering is a matter for the court to decide. ‘All that TOMM does is tell you whether a person has been motivated to perform well on a memory test, on a test that’s very simple, deceptively simple. If they perform poorly on that test, then that would cause me to question their level of effort on other memory tests that I’ve administered to them. But I couldn’t give an opinion about whether they are malingering or not because I believe that’s a matter for the courts. Because in order to do that, you would have to make assumptions about their motives.’
Mr Balfour agreed, however, that he had made assumptions in the accused’s case about his pre-morbid abilities and his intellectual capacities. He said that he could be wrong as to those matters.
There was an interruption to Mr Balfour’s oral evidence. When it resumed some hours later Mr Balfour produced a summary of some research which he had been able to find on the TOMM test by doing literature searches of data bases. He had found an article that had been accepted for publication, but not yet been published, that reported on a study conducted in 1997. It had concluded that whilst the TOMM test works well in certain groups it does not work so well, or works very poorly, in a group of persons with dementia. Mr Balfour agreed that relying on that study may raise a difficulty where there may be a difference of opinion as to whether or not a particular person is suffering from a dementia.
Mr Balfour was again asked by Mr Nitschke, counsel for the accused, why he did not administer the TOMM test to the accused. He explained that it was because of his concerns about cultural factors which he said were an unknown. He referred to his earlier evidence about his professional anxiety to use a test which may say something about a defendant’s credibility. He said, however, that the most important factor was that there was no cultural data on the TOMM test. For all he knew, normal Albanians may perform poorly on the TOMM test or they may perform well.
Mr Balfour said that his assessment of the accused’s application to the tests he administered to him was that ‘on the surface of it, as best as I could tell, he appeared to be applying himself to the tests but I acknowledge his limitations’. He acknowledged there were limitations on himself in the circumstances.
Mr Balfour was cross-examined by Mr Hinton, counsel for the DPP. He agreed that before one could make a diagnosis of dementia one would have to find first, a memory impairment and secondly, either aphasia, apraxia, agnosia, or severe disturbances in executive function. Then, having found that, one would have to compare whatever one found to the level of functioning of the individual prior to a point in time when these changes are first identified. That is pre-morbid level of functioning.
Mr Balfour agreed that he had made a number of assumptions about the accused’s pre-morbid level of functioning. He agreed that it was a very important bench-mark in determining whether or not the accused was actually suffering from dementia. He could just be someone who is ‘borderline mentally handicapped’. Mr Balfour agreed that, implicit in the assumptions he had made, were his own cultural prejudices.
Mr Balfour agreed that although he had not seen any of the results of the CT scan, the MRI scan or the SPECT scan the information he had from the Queen Elizabeth Hospital was that the accused had suffered a ‘sub-acute left small infarct extending to the inferior genu of the internal capsule’. He agreed that that indicated that the location of the stroke as determined by a CT scan was the left middle cerebral artery, with the consequence that the right side of the body was affected – the right arm and leg.
Mr Balfour agreed that the right side of one’s brain is dominant for visuo-spatial ability and the left side of one’s brain is dominant for one’s language capabilities. Because of that, he agreed that the consequences of the accused’s stroke would be mainly in language ability, and would not be so manifest in his visuo-spatial capabilities. Mr Balfour agreed with Mr Hinton that if one really wanted to look at the accused’s stroke as being the product of dementia then one would have to look at his language capabilities. He agreed that he (Mr Balfour) was limited in his ability to do that and he said that his assessment was deficient in that he had not tested the accused’s language abilities. He also agreed that in addition to that, it would be fair to say that his assessment was deficient in that he was not able to obtain a pre-morbid level of functioning for the accused using psychological tests, but rather had to rely on the accused’s history of education and work.
Mr Balfour agreed that he had obtained from the accused some explanations as to the role of the prosecutor and the judge in a trial. He agreed that he was able to get from the accused a defence in that the accused had told him that the subject plants were not his, they were his son’s.

Mr Hinton asked Mr Balfour to consider the last part of page 10 and the first half of page 11 of his report of 17 March 2003 (Exhibit D2). Mr Balfour agreed that the accused’s memory of those events concerning the charges was sufficient such that he could tell Mr Balfour of his version of those facts. Mr Balfour was also asked to consider a passage at the bottom of page 2 of his report of 11 March 2004 (Exhibit D4). He agreed that that indicated that the accused had told him that ‘three years ago the police asked him about cannabis but that he had nothing to do with it’. Mr Balfour agreed that that was consistent with the paragraph to which he had been taken in his earlier report of 17 March 2003. Mr Balfour agreed that the two excerpts to which he was referred were an answer to an allegation, and a defence, that the accused had displayed consistently. Mr Balfour agreed that there was no reason why, with the assistance of his legal advisors, the accused could not make that defence known to the court. Mr Balfour agreed that it was fair to say that the accused’s memory was sufficiently intact for him to make known who was responsible for the cannabis that is the subject of the charges. Mr Balfour was later taken to another passage in his report of 17 March 2003 (Exhibit D2, page 11.4) where Mr Balfour noted that he had again explained to the accused the police allegations. The accused said he would always deny them. ‘He would even hang himself to prove his innocence.’ Mr Balfour agreed that that observation of the accused was inconsistent with an accused who thought he must acquiesce and was not allowed to dissent.
Mr Balfour agreed that certain of his tests indicated that the accused did not suffer from aphasia. He also agreed that there was no evidence of any severe constructional or drawings apraxia. Only a low level of apraxia was evident in the accused. Furthermore, he agreed that he had seen no signs of any agnosia in the accused.
Mr Balfour agreed that having said this, there remained the assessment of memory impairment and any disturbance of executive functioning as being the basis upon any possible diagnosis of vascular dementia. Mr Balfour agreed that he had no scans indicating neurological abnormalities and he knew that the hospital considered that any neurological signs in the accused had resolved themselves quite quickly. He agreed that he was constrained in testing the pre-morbid functioning of the accused. He agreed that he had made a judgment which was dependent upon the quality and comprehensiveness of the information available to him. He acknowledged that the limitations with which he was faced hampered his assessment. He was also reliant upon the accused and Mrs Kola giving a truthful history. Mr Balfour was asked:
QIsn’t it the case, then, that we have no aphasia, no agnosia, some signs of apraxia and some changes in executive functioning but the severity cannot be accurately determined.
AAnd making it clear that some of those areas were difficult to formally assess, for example, the aphasia.
QSo we have risk factors and indicators that vascular dementia is possible but isn’t that as high as it can be put.
ABased on what I have been told with, firstly, the medical history, the abruptness of the change, the poor short-term memory, impairment and other features I’ve documented in my report, changes in personality functioning, emotional functioning; those are all consistent with the effects of a vascular dementia but at the end of the day it is just a possibility.
QThey have to be weighed, in this case, do they not, with the inability to test the number of domains that you would normally test: the cultural bias, the non-language skills testing, the use of an interpreter, the nonavailability of an updated MRI or CT scan, the possibility of malingering. All those factors also have to be thrown into the balance, don’t they.
AYes.
QThen on the other side – perhaps not the other side- but additional factors are you did obtain a detailed history and you did get the defence and you were satisfied that Mr Kola had a rudimentary understanding of the role of certain participants in the trial process; agreed.
AYes.
QTo that extent he showed that he could comprehend what was going on in the course of his interaction with you; agreed.
ABut at times there were problems that were noted by the interpreter but he was able to – I was also able to communicate with him, yes.
Mrs Kola gave evidence. She is the wife of the accused. The thrust of her evidence was that since the accused’s stroke in March 2001 he had been ‘sick’, and has been getting worse and worse. She said his memory is very bad and he has been violent towards her. That is getting worse as the days go by. She said he has ‘got nervous’ ‘maybe because he’s sick’. She thought his stroke had given him all these problems. She said that before his stroke he was a very good husband. He was good with his personal hygiene. That has changed and he won’t listen to her when she tells him to change his clothes regularly. She said he had changed, in relation to changing his clothes, immediately after the stroke. She said his approach to cleaning himself and his toilet hygiene were getting worse and worse. She said that she goes out to the front of the house with him because she is afraid that he might leave or jump onto the road where the cars were. She never lets him go anywhere away from the house by himself. He now mixes up the names of some of his grandchildren. She hasn’t asked him about certain things because she was safeguarding herself in case he hits her. He is now a hot-tempered man, which he never was before the stroke.
Mrs Kola refused to answer Mr Hinton’s questions about the cannabis police found in the house in which she was living in May 2001 (count 1). She refused to answer any questions about the property at Grange Road, Grange (count 2 and 3). She refused to answer a question that she and her husband would attend at that property in May 2001, and she refused to answer a question that the accused would drive her to that property in his motor vehicle.
Mrs Kola was asked whether she was ‘playing up your husband’s poor health in the hope that it will help your chances with immigration’. She answered: ‘First of all I’m suffering from his conditions. Secondly, I’ll leave that to the doctors to decide’.
Mrs Kola was asked whether the accused had regularly seen a doctor since his stroke. She said that they hadn’t gone regularly because of a lack of finances. The last time was when the doctor took maternity leave and they went to another doctor. The doctor who had maternity leave was Dr Chandiok. She couldn’t remember the last time the accused saw Dr Chandiok. He had seen another doctor since Dr Chandiok took maternity leave. She told the doctor that her husband had been getting worse. She said that she could not remember when Dr Chandiok went on maternity leave. It appears from part of Exhibit D7 (records from the Queen Elizabeth Hospital) that the accused saw Dr Katsaneris in about January 2003. Dr Katsaneris is in the same practice as Dr Chandiok (so the letterhead on Exhibit D8 suggests).
Mr Hinton tendered two reports of Mr Mark Reid dated 17 April 2003 and February 2004. Mr Reid had been practicing clinical neuropsychology for the past 27 years, including, for the past 15 years, in private practice. A large proportion of his private practice is within the medico-legal context.
In his first report of 17 April 2003 (Exhibit P5) Mr Reid wrote that he saw the accused on 15 April 2003. The accused was accompanied by a professional interpreter. The accused attended at Mr Reid’s rooms with Mrs Kola. Mr Reid did not interview Mrs Kola.
On Mr Reid’s questioning of the accused, he was adamant that there were no difficulties with his memory or his thinking prior to his stroke in March 2001. During neuropsychological examination Mr Reid noted that when he put questions directly to the accused, prefaced by the statement ‘do you remember?’, the accused would frequently tell him that his memory was now poor and he could not remember these things. Mr Reid noted that when indirectly questioning him the accused was able to recall considerable details of events over the last one and a half years. He gave the example of questioning the accused about cannabis plants. The accused told Mr Reid that the accused had asked his son ‘What are these?’. The accused had told him that his son had replied ‘Keep your mouth shut, it is not your business’.
Mr Reid referred to his surprise at the amount of detail the accused was able to provide to him, not only of recent history over the past three days and of the past months since the release of his son from gaol, but about his and his son’s relationship, and what specifically happened approximately one and a half years ago when he stayed at his son’s house after his discharge from hospital.
Mr Reid carried out a formal assessment of the accused’s memory and of other aspects of cognition. At the end of the assessment Mr Reid had him undertake a memory test which is used to determine any possible exaggeration, fabrication or malingering of memory disorders (the TOMM test).
In his summary and conclusions Mr Reid referred to the hospital notes which referred to the accused’s stroke as a small infarct in the internal capsule on the left hand side, and most likely related to the middle cerebral artery. Mr Reid wrote that, according to the records, that produced a degree of dysphasia and confusion, but it is also reported that the accused’s neurological signs rapidly improved. Mr Reid said that symptoms of dysphasia and memory impairment would not be unusual following such a location of left-sided infarct.
Although the accused maintained to him that his memory remained very impaired, Mr Reid’s own history taking, and the information obtained from Mr Balfour’s report of 17 March 2003 (Exhibit D2), indicated there were a number of inconsistencies and contradictions in the accused’s recall of information. Mr Reid noted that the accused was able to provide considerable detail when questioned indirectly, but when directly asked questions with relation to his memory he described poor memory and lack of recall.
Mr Reid’s formal neuropsychological assessment revealed some impairment of short-term memory but he questioned the validity of that given the accused’s poor performance on the TOMM test. Mr Reid wrote that the accused’s other cognitive skills were basically intact. He could determine no on-going evidence of dysphasia, which was apparently evident immediately after the accused’s stroke. The accused could comprehend up to five-stage instructions, and his expressive speech did not reflect any specific paraphasic or dysphasic errors. Notably, there was no difficulty with visual-spatial and other perceptual skills.
Mr Reid concluded that he did not believe that the accused was demonstrating the clinical or neuropsychological features of a primary dementing illness.
Mr Reid concluded that, on his investigations and assessments, he believed that the accused was mentally fit to stand trial. It was his opinion that the accused would have a reasonable understanding of and an ability to respond rationally to charges or allegations put to him. He believed that the accused understood the role of his lawyer and that he could instruct his lawyer and understand procedural rights. Mr Reid believed that the accused would generally be able to understand proceedings, or at least be able to understand his solicitor advising him as to the progress of proceedings.
Mr Reid re-examined the accused on 30 January 2004 and reported on that examination on 2 February 2004 (Exhibit P6). Mr Reid carried out a repeat neuropsychological examination. He found no indications of any dysphasic language disorder and his assessment of the accused’s visual-spatial and other perceptual functions did not reveal any significant impairment. The accused did demonstrate some difficulty on formal tests of memory which Mr Reid considered to be statistically at a ‘moderate level’ of impairment.
Mr Reid again administered the TOMM test. That again raised very serious questions about the validity of his performance on tests of memory and also raised serious questions about the validity of his subjective complaints about memory impairment.
On the basis of the history he was given on 30 January 2004, and his further neuropsychological examination on that date, Mr Reid had no reason to change his previous opinion. He could find no evidence whatever that the accused was suffering from a dementing illness. He seriously questioned the validity of the accused’s performance on tests relating to short-term memory. He was of the opinion the accused’s performance was suggestive of exaggeration or even more blatant attempts of dissimulation.
Mr Reid’s opinion was that the accused was mentally fit to stand trial.
In his oral evidence Mr Reid referred to his reasonably wide practical experience in the assessment and treatment of people with various forms of dementia. He referred to the fact that he had conducted a memory and dementia outpatient clinic.
Mr Reid said that in the accused’s case he had no evidence upon which he could formulate a diagnosis of dementia. He explained that to make a diagnosis of dementia one needs a lot of medical information. He sad that if one does not have that information one really cannot say that the criteria have been met. Some of that information includes radiological evidence and neurological evidence of hard neurological signs as well as soft neurological signs. One also needs to exclude a lot of other potentially reversible causes of dementia. The usual diagnostic requirements are a disturbance in memory and usually two of either aphasia, apraxia, agnosia or a severe disturbance in executive function. One then needs to compare that to the pre-morbid level of function.
Mr Reid said that when testing whether there was any memory impairment in the accused he tested all of the accused’s cognitive domains. He identified no key difficulties in the realm of language and speech. He also found no evidence in areas of language function. He detected no dysphasia or aphasia. He assessed whether the accused suffered any apraxia in quite some detail. He also assessed the accused’s visuo-spatial skills in some detail. He was unable to find any significant level of impairment. He did not consider that such testing was affected by any possible cultural bias.
Mr Reid said he tested the accused’s ability to undertake a four or five stage instruction in order to test his language domain. He tested the accused’s ability to identify or recognise objects. He had no difficulty in that test and hence there was no agnosia.
Mr Reid said it is extremely difficult where there is cultural difference to test a person’s executive function. In this regard he explained why he did not interview Mrs Kola. He was aware of the potential area of bias and he wanted to exclude that in his neuropsychological examination of the accused. Mr Reid did not think his interview was deficient by his not interviewing Mrs Kola because he specifically looked at a range of cognitive skills to determine whether or not there was any difficulty, and in which domains. If the accused had demonstrated a number of difficulties he might have then sought some collaborative evidence from a third party. However, he did not obtain, on his own examinations, enough evidence to convince himself that there were any problems which would meet the criteria for a diagnosis of dementia.
Mr Reid explained how he tested whether the accused suffered memory impairment. He said that, at face value, there appeared to be some problem with short-term memory. However, when he considered other clinical features, Mr Reid thought that there was an inconsistency between the accused’s complaints of memory and the detail he did provide. Accordingly, he administered the TOMM test on both occasions he saw the accused. The accused’s performance was extremely poor and very highly suggestive of deliberate dissimulation.
Mr Reid said that he had no evidence, based on his own examination and his interview with the accused, that the accused was not fit to stand trial.
Under cross-examination Mr Reid said that he could not rule out dementia in the accused’s case but he had no evidence to indicate dementia over and above the fact that the accused suffered a circumscribed stroke in 2001. However, according to the information from the Queen Elizabeth Hospital he made a very good and quick recovery from that in terms of any cognitive impairment. Mr Reid’s own examination had not alerted him to anything that would warrant the undertaking of any further investigations to look at a possible vascular dementia. The results of the TOMM test, in the context of the other neuropsychological investigations he did on the various domains of cognition, raised serious doubts about the validity of the accused responding on any cognitive task that Mr Reid gave him. As a matter of fact he did very well on those other tasks, so Mr Reid had no evidence to suggest there is an underlying dementing illness in the accused.
Mr Reid explained why he considered that the TOMM test was a valid and useful test and why he considered that a recent study referred to by Mr Balfour did not undermine his view of the validity and reliability of the test.
Mr Reid said his understanding was that any suggestion that the accused had become aggressive in his behaviour started after his son was imprisoned. If, however, it was the case that the accused’s aggression started shortly after his stroke in March 2001, Mr Reid said that did not point to a deterioration in executive function. Aggression post-stroke is not a pathognomonic feature of damage to the frontal lobes of the brain. He said that there may be other explanations for aggression such as frustration with a limitation of some physical skills. He gave similar explanations for any change in habits observed in a person post-stroke, such as changing of clothes, eating habits, or features of personal hygiene.
Mr Reid said that his view was that some of the accused’s inconsistencies in his history giving were quite remarkable. He gave the example of the accused not knowing his own name or who he was. He pointed to one of Mr Balfour’s reports where Mr Balfour had referred to the accused being disorientated to place and person (Exhibit D2, 17 March 2003, page 3.6). He said that it is only in extreme and very advanced (almost semi-vegetative) cases that he saw people disassociated to their own person.
Conclusions
Having heard the evidence and representations of both counsel I decided that it had not been established, on the balance of probabilities, that the accused was mentally unfit to stand trial on 25 March 2004.
I was impressed by both Mr Balfour and Mr Reid as witnesses. I formed a firm view, however, that Mr Reid’s opinions and evidence were more convincing than those of Mr Balfour.
What I considered to be concessions by Mr Balfour during his cross-examination by Mr Hinton were readily and properly made by him. In my view, however, they were such that his overall opinion that the accused was suffering from irreversible vascular dementia such that he was unfit to stand trial was substantially weakened. Mr Balfour ultimately accepted during his cross-examination that his opinion was not a strong one, and that, at the end of the day, it was no more than a possibility that the accused suffered from vascular dementia. Even if I had been convinced that I should accept Mr Balfour’s opinions with the concessions and qualifications to which I have referred in these reasons, I would have been unlikely even then to have decided that it had been established, on the balance of probabilities, that the accused was mentally unfit to stand trial.

I did not consider that Mr Balfour was in a better position to assess the accused’s mental processes by virtue of the fact that he had on two occasions interviewed Mrs Kola. Mrs Kola was by no means an independent and objective third party. She was not only charged jointly with the accused but she was the wife of the accused. Furthermore, and equally importantly, she and the accused had been attempting to remain as permanent immigrants in this country for over five years prior to my investigation. The accused’s health was relevant to that matter. In addition to those matters I was not favourably impressed with Mrs Kola’s evidence and the manner in which she gave it in the investigation before me. I considered that she was consciously fabricating and exaggerating some of her husband’s asserted disabilities and his alleged altered personality and conduct.
Whilst I considered that there was a possibility that the accused suffered some mild impairment of his cognitive functioning as a result of the stroke he suffered in March 2001, I was not satisfied that he probably suffered any on-going or permanent cognitive impairment as a result of it. I was certainly not satisfied that the accused suffered any impairment to his cognitive function at the time of my investigation. I was convinced that at that time the accused was not suffering from vascular dementia or dementia of any sort.
Even if I was wrong as to those matters and that it was the case that the accused’s mental processes were disordered or impaired in some way, I was not satisfied that they were so disordered or impaired that the accused was unable to understand, or to respond rationally to, the charges or the allegations on which the charges are based; or that he was unable to exercise (or to give rational instructions about the exercise of) procedural rights; or that he was unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.
I was convinced by the evidence of Mr Reid, and by the answers the accused gave at various times to both Mr Balfour and Mr Reid as to the charges and the nature of the proceedings, that the accused had an ability to understand the charge and the allegations on which it is based; to exercise and give rational instructions about the exercise of procedural rights; and to understand the nature of the proceedings and to follow the evidence and the course of the proceedings.
I was convinced that the accused had sufficient capacity to decide what defences he could or would rely on and to be able to give his counsel instructions to answer the charges. He also had an ability to give his version of the facts in answer to the allegations which are said to constitute the offences. I was convinced that he was also able to exercise procedural rights and to give rational instructions about their exercise. Finally, I was convinced that he was able to understand generally that the proceedings were an enquiry as to whether he did what he is charged with, that he was able to understand what was going on in court in a general sense, and that he was able to understand the substantial effect of any evidence that may be given against him.
Being convinced of these matters I decided that it had not been established, on the balance of probabilities, that the accused was mentally unfit to stand trial.

[2004] SADC 77

21 May 2004