R v Kowald - [2023] SADC 6

District Court of South Australia
(Criminal)
R v KOWALD
[2023] SADC 6
Reasons for Ruling of her Honour Judge Kudelka
31 January 2023
CRIMINAL LAW - PROCEDURE - FITNESS TO PLEAD OR BE TRIED - DETERMINATION OF ISSUES
The defendant is charged with two counts of hindering a police officer and thereby causing harm contrary to s 20AA(4) of the Criminal Law Consolidation Act, 1935 and one count of assaulting a prescribed emergency worker contrary to s 20AA(3) of the Criminal Law Consolidation Act, 1935. It is alleged that he committed the offences on 27 March 2021.
Held: The defendant is mentally unfit to stand trial.
Criminal Law Consolidation Act 1935 (SA); Part 8A, referred to.
R v Presser [1958] VR 45; R v W, R (2019) 133 SASR 331; R v Hayles (2018) 131 SASR 186, applied.

R v KOWALD
[2023] SADC 6
Criminal

Christopher Lee Kowald is charged with three offences said to have been committed by him on 27 March 2021. He is charged with two counts of hindering a police officer and thereby causing harm contrary to s 20AA(4) of the Criminal Law Consolidation Act 1935 (CLCA) and one count of assaulting a prescribed emergency worker contrary to s 20AA(3) of the CLCA.
During pre-trial proceedings, defence counsel provided medical reports to the court regarding the defendant’s fitness to stand trial. On 11 August 2022, an order was made pursuant to s 269WA of the CLCA requiring the defendant to undergo an examination by a psychiatrist or other appropriate expert and the results of the examination to be reported to the court. A report was prepared by Dr William Brereton, dated 20 October 2022. In that report, Dr Brereton expressed the opinion that the defendant is not fit to stand trial. The Director of Public Prosecutions did not accept that opinion.
Pursuant to s 269J of the CLCA, an investigation was ordered into the defendant’s mental fitness to stand trial and pursuant to s 269L of the CLCA, I determined that the question of the defendant’s mental fitness to stand trial be separately tried before any other issue. The trial of the defendant’s mental fitness to stand trial proceeded pursuant to s 269M of the CLCA.
At the conclusion of the trial of the defendant’s mental fitness to stand trial, I found that it had been established on the balance of probabilities that the defendant is mentally unfit to stand trial and recorded a finding to that effect.[1] These are the reasons for that finding.
[1]Section 269M(3)(a) of the CLCA.
The trial of the defendant’s mental fitness
At the commencement of the trial, Mr Kirby, on behalf of the defendant, tendered the report of Dr Brereton dated 23 October 2022.[2] Dr Brereton had access to various sources of information as set out in paragraph 1.2 of his report. He also interviewed the defendant on 26 August 2022.
[2]Exhibit D1.
Dr Brereton is a consultant forensic psychiatrist with Forensic Mental Health Services in South Australia and a clinical lecturer with the University of Adelaide. He has worked in the field of forensic psychiatry since 2003. He began work as a consultant in South Australia in 2008. His expertise to express opinions on the issue of the defendant’s mental fitness to stand trial was not disputed. There was no dispute regarding the factual basis upon which Dr Brereton formed his opinions.
Dr Brereton gave sworn evidence and was cross‑examined by Mr McCabe for the prosecution. No further evidence was called by the defence.
The prosecution tendered agreed facts and did not call any further evidence.
I found Dr Brereton to be a careful and thoughtful witness. I have accepted his qualifications and the opinions that he expressed. I have been assisted by those opinions to come to the finding that the defendant is mentally unfit to stand trial.
The alleged offending on 27 March 2021
Dr Brereton referred to the circumstances of the alleged offending at part 4 of his report.
In summary, it is alleged that at around 3.55 pm on 26 March 2021, the defendant was seen walking in traffic and an ambulance was called. The defendant’s demeanour was aggressive and violent and police assistance was requested. The defendant was detained under s 56 of the Mental Health Act and transported to the Lyell McEwin hospital. Police officers were injured while the defendant was being detained but no charges arose from that occasion.
At around 6.00 am on 27 March 2021, the defendant absconded from the hospital and police were informed. At around 7.30 am, three police officers attended the defendant’s house. There was no response to their knock at the door. The police entered the house via an unlocked back door. The defendant was hiding in the bathroom and did not co‑operate with police direction. He was using his mobile phone in an attempt to call a taxi company to come and pick him up.
It is alleged that the defendant became agitated, forcefully pushed the bathroom door and punched the three police officers. Those alleged punches are the subject of the three charges.
The police used defensive spray, which had little effect. Even after the defendant was tasered, he continued to resist. He was tasered a second time before being cuffed and moved outside. For the next 90 minutes, he continued to physically resist and was restrained by the police. He shouted, cried and wailed. An ambulance eventually arrived, and the defendant was sedated seven times before he was calm enough to be put into the ambulance. A further sedative was administered on the way to hospital.
Clinical history
At part 6 of his report, Dr Brereton summarised background information from medical records regarding the defendant’s medical history dating back to April 2016 when the defendant was 21 years old.
During an admission to hospital between 1 January 2017 and 27 March 2017, the defendant was diagnosed with schizophrenia. During an admission to hospital between 6 July and 20 August 2018, he was diagnosed with treatment resistant schizophrenia. His symptoms were noted to have worsened because of ongoing substance use and noncompliance with medication.
In October 2019, he was admitted to hospital for 13 days after neighbours complained he had been up all night, yelling loudly, damaging his house, and pushing over bins. The police tasered him to subdue him. In addition to noting his diagnosis of schizophrenia, there was a primary diagnosis of methylamphetamine dependence.
The defendant was admitted to hospital between 7 and 21 February 2020 because he was running in front of traffic and causing a disturbance. He became aggressive when police attended and asked the police to taser him. He was sedated and presented at the hospital as psychotic.
In relation to the incident the subject of these charges, Dr Nair decided to discharge the defendant on 28 March 2021. The defendant was under a Community Treatment Order. He was followed up by a Playford Community Mental Health Team and receiving a fortnightly depot injection of the antipsychotic, olanzapine.
On 10 and 24 November 2021, Dr Condon interviewed the defendant and prepared a report dated 1 December 2021. She described the defendant as unkempt and thought disordered with a tendency to provide inappropriate responses. She considered him to be so cognitively impaired that he was unfit to instruct his lawyer and unfit to plead. She expressed the opinion that he would be unlikely to regain fitness over the next 12 months if not treated and abstinent from illicit substances. She placed him under an Inpatient Treatment Order.
In a report dated 17 June 2022, Dr Nguyen noted the defendant’s well‑established diagnosis of schizophrenia which has been complicated by chronic polysubstance abuse. He concluded that the defendant was mentally unfit to stand trial but might be able to regain fitness if he could be abstinent from illicit drugs for three months.
Dr Brereton’s interview with defendant on 26 August 2022
Dr Brereton interviewed the defendant for two hours on 26 August 2022. The defendant’s mother was present toward the end of the interview.
At the time of the interview, the defendant was 28 years old, single, unemployed, and living alone in a house bought by his mother and paying her rent. He had been living there for three years.
Dr Brereton stated in his report that ‘what follows is not a typically structured psychiatric interview’. He summarised the defendant’s mental state examination as follows:
Mr Kowald was thin and dishevelled. From the outset of the interview, he was anxious and agitated. This worsened as the interview progressed. He frequently stood up and paced around the room. He found the interview process difficult to tolerate and tried to leave on several occasions. Eventually his mother had to join us to provide him with reassurance. His mood was hard to gauge as he found the interview itself distressing. His speech was rapid. He was thought disordered with loosening of associations and derailment such that he frequently gave irrelevant responses and was often incomprehensible. It was difficult to elicit information regarding Mr Kowald’s thought content, either at the time of our interview or at the time of the alleged offending. However, some of his comments and behaviour made me suspect he was harbouring delusions. Mr Kowald denied any perceptual abnormality, but he was very distracted, and I suspected he was experiencing auditory hallucinations. As a result of his symptoms, his cognition was significantly affected. His attention and concentration were very poor. His thinking was concrete at times. He had difficulty processing information and often could not follow my line of questioning. He had no insight. [3]
[3] Report of Dr Brereton dated 23 October 2022, paragraph 8.39.
In his evidence, Dr Brereton confirmed that it was a difficult interview. The defendant was anxious, agitated and plainly thought disordered from the outset. It was extremely difficult to obtain any kind of coherent information. The information he did get was often odd and sometimes could not be followed at all. Dr Brereton could not reproduce verbatim what was being said because it was so disordered. The interview was two hours but most of it was unable to be reproduced in the report. He considered that some of what the defendant said reflected some background delusional thinking and he suspected the defendant was responding to auditory hallucinations. He was extremely distracted, and his attention was poor.
Dr Brereton considered that what he saw was not dissimilar to how the defendant presents most of the time. The defendant’s mother did not indicate that he was having a particularly bad day but instead described a more disordered presentation altogether when the defendant was particularly unwell.
The defendant’s mental illness
Dr Brereton gave evidence that the defendant has a severe treatment resistant schizophrenia.[4] He is significantly unwell even when on medication. He has a chronic, quite severe psychosis at the best of times. It is worsened by his substance use but that is not the major factor behind the psychotic picture.
[4]T11.
Clozapine is the medication reserved for use in treatment resistant schizophrenia, but it has some drawbacks. When the defendant trialled Clozapine in about 2017, there was a significant improvement in his symptoms, but he was left with some residual negative symptoms such as paucity of thought, amotivation and social withdrawal. Because his schizophrenia impairs his judgment so globally, the defendant does not understand the importance of the medication and his thought disorder and disorganisation means he will find it hard to remember to take medication and turn up to appointments. It is a function of the illness itself that people do not realise they are ill, which is a cruel symptom.
Given that the defendant has been significantly chronically unwell since 2017, he has reduced chance of responding as well to Clozapine again. The longer the duration of the untreated psychosis, the more you reduce your chances of responding positively to the medication.[5]
[5]T122 – 13.
I accept Dr Brereton’s opinion regarding the defendant’s illness and the nature of it. There was no challenge to that opinion.
The Director’s challenge is to Dr Brereton’s opinion regarding the defendant’s mental processes in the context of s 269H, the presumption of fitness and the need for it to be established on the balance of probabilities that the defendant is mentally unfit to stand trial.
The defendant’s mental unfitness to stand trial
A person’s mental fitness to stand trial is to be presumed unless it is established on an investigation under Division 3 of Part 8A of the CLCA that the person is mentally unfit to stand trial.[6]
[6]Section 269I of the CLCA.
The test for determining unfitness for trial is set out in s 269H of the CLCA:
269H—Mental unfitness to stand trial
A person is mentally unfit to stand trial on a charge of an offence if the person's mental processes are so disordered or impaired that the person is—
(a)unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based; or
(b)unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or
(c)unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.
Section 269H does not change the common law as stated by Smith J in R v Presser.[7] The principles relevant to the application of s 269H were set out by Stanley J in R v Hayles.[8]
[7]R v Presser [1958] VR 45 at 48; R v W, R (2019) 133 SASR 331 at [24] per Stanley J.
[8](2018) 131 SASR 186 at [31].
In his report, Dr Brereton summarised his opinion regarding the defendant’s mental unfitness to stand trial as follows:
During my interview with Mr Kowald, I found it difficult to discuss the alleged offending with him. He became anxious and agitated and had difficulty concentrating. He made odd comments such as being unable to remember because of sleeping each night. He displayed a poor grasp of his legal situation, telling me if the case was ‘thrown out’ then he would not sue for damages, and seemed to be offering to take up fulltime work in return for having his case dropped. His discussion was thought disordered and frequently difficult to follow. At one point, he seemed to indicate the video footage was faked. When discussing matters relevant to fitness to stand trial, many of his answers were irrelevant. He told me being found not guilty meant he would be able to ‘sue them’. At one point in the interview, he kindly offered to procure me illicit substances, showing a poor awareness of the legal context of our assessment. Please see ‘Mental State Examination’ (paragraph 8.39) for a detailed description of Mr Kowald’s presentation. I note Mr Kowald’s functioning has been poor for some years. He requires considerable amounts of support from family members, without which he would not be able to live on his own (see 8.36). In my opinion, Mr Kowald’s mental processes are so disordered that while he is able to understand the charges against him, he has great difficulty responding rationally, primarily as the result of delusional ideas and formal thought disorder. Based on my interview with Mr Kowald, I do not believe he is able to exercise his procedural rights, particularly giving rational instruction. Also, his high levels of anxiety, his thought disorder, and his poor attention and concentration are such that he would have great difficulty following the evidence or course of proceedings. His psychosis and inability to engage with me in a discussion about his legal matters has also led me to doubt whether he is able to understand the nature of proceedings. In summary, therefore, I do not believe Mr Kowald is mentally fit to stand trial on the current matters. The collateral information, including notes and discussion with his mother, indicates Mr Kowald is chronically unwell, even when receiving regular treatment, and I do not believe there is a reasonable prospect Mr Kowald will regain the necessary mental capacity over the next 12 months.
Section 269H(a)
In addition to the opinion expressed in his report, Dr Brereton gave evidence that when talking about the legal process, the defendant was not able to give any sensible account of what was happening to him almost at all. He expressed the view that the defendant did understand the charges but was not able to give a rational response. The defendant found the subject very distressing, which meant he became more anxious and increasingly thought disordered and overlaid with delusional things in what he was saying. It was difficult to get him to say the difference between guilty and not guilty. He seemed to be saying that if he was found not guilty that might give him the opportunity to sue somebody, but it was not clear who.
In cross-examination, Dr Brereton agreed that the defendant said he is not guilty of the current charges and told him things about the day of the charges. He said that if you take that in isolation and disregard all the other information, you could say that was a rational response, but he is not basing his opinion simply on that response.[9] If you consider what the defendant said in the context of the interview, it was far from it. He said, ‘those are snatches of coherence out of a conversation that was 80% incoherent and going off at tangents and being circumspect and often grossly incoherent’.[10] These words do not demonstrate a capacity to respond naturally to the charges.
[9]T16.
[10]T16.
The prosecution submitted that the fact the defendant said things to Dr Brereton about the day of the allegations and told him that he was not guilty demonstrates his capacity to provide a rational response to the charges or the allegations on which the charges are based. There is capacity because there might be thought to be a rational response within his irrationality. The prosecution submitted that a lot of what the defendant might say about the charges might not make sense but the fact that his is capable of saying things about the charges which do make sense demonstrates capacity. [11]
[11]T43 – 44.
For the defendant, Mr Kirby submitted that Dr Brereton spoke of the defendant’s inability to rationally answer questions and to focus on the topic. The defendant became anxious and agitated. Dr Brereton emphasised the difficult nature of the interview and the examples relied upon by the prosecution cannot be taken out of context. They were not specific answers to specific questions but examples of irrational or irrelevant comments.[12]
[12]T36 – 37.
On the balance of probabilities, I find that there is an absence of capacity on the part of the defendant to respond rationally to the charges or the allegations on which the charges are based. Whilst some of the words used by the defendant might give the impression of him giving a response to the charges/allegations, I do not consider he has a capacity of doing so rationally.
Dr Brereton gave evidence that the defendant said ‘an awful lot that was completely unintelligible’.[13] In relation to the subject of these charges, he said the defendant found it very distressing, became more anxious and increasingly thought disordered. He was extremely distracted and may have been responding to auditory hallucinations. Throughout his evidence, Dr Brereton emphasised the disordered nature of the defendant’s mental processes and the irrational and unintelligible nature of what he was saying. In considering Dr Brereton’s evidence as a whole, I think it would be an error to extract some of the defendant’s words out of the ‘salad of words’, put them together with other words and say that he has rationally responded to a particular question. Dr Brereton made it clear that his report should not be read in that way. He was doing his best out of the defendant’s ‘salad of words’ to extract a little bit of meaning to illustrate topics to the court.
[13]T16.

I accept Dr Brereton’s opinion that the defendant does not have a capacity to make a rational response to the charges/allegations.[14]
[14]T16.
Section 269H(b)
In addition to the opinion expressed in his report regarding the defendant’s ability to exercise (or give rational instructions about the exercise of) his procedural rights, Dr Brereton gave evidence that it would be very difficult to explain to the defendant exactly what the procedural rights were in order for him to then exercise them. He gave evidence that ‘with plenty of time, guidance from counsel he may be assisted in that’ but he still had his doubts.[15] He expressed the opinion that the defendant’s judgment is so impaired that he is not in a position to make a choice whether or not to give evidence.[16]
[15]T13.
[16]T14 – 15.
In cross-examination, Dr Brereton said that the defendant would be able to repeat the words ‘I want that individual not to be on my jury’ but he would not understand the concept of empanelment of a jury or the concept of challenging a particular juror’s position on the jury. The defendant does not have the capacity to understand an explanation that 12 people were deciding whether he hit police or not. [17]
[17]T17 – 18.
During cross-examination, Dr Brereton was shown a portion of the body worn video of the defendant’s arrest.[18] The defendant had been sprayed and tasered. He was handcuffed on the ground. The police ‘read him his rights’ whilst also spraying water into his eyes. He was yelling out to the neighbours to call his mum, asking for someone to help him, saying the police were going to kill him, saying he was going to kill all of them, saying things about the cuffs being tight and being told to stay down and stay still. In the course of that he said something like ‘I have my right, I need my phone call to make my phone call’.
[18]Exhibit P2.
Dr Brereton did not accept that the defendant was exercising his right to make a phone call in response to what the police officer had explained. He asked for a phone call in a purely mechanical way. Based on his interview with the defendant, Dr Brereton expressed the opinion that the defendant is unable to process an explanation, retain it, weigh decisions in the balance and communicate with his lawyer in a way that means he can effectively exercise his procedural rights.[19]
[19]T20 ‑ 24.
The prosecution submitted that Dr Brereton was applying a test that required a deeper level of understanding about procedural rights than the s 269H(b) test required. The prosecution also submitted that the defendant demonstrated his ability to exercise his rights at the time of his arrest.[20]
[20]T44 – 48.
Mr Kirby referred to Dr Brereton’s evidence that the defendant would not be capable of giving evidence and the defendant’s presentation during the interview with Dr Brereton. He relied upon Dr Brereton’s evidence that the defendant would not have sufficient insight to be able to make an informed decision about giving evidence, let alone be capable of so doing. Mr Kirby also referred to the need to consider the defendant’s fitness at the time of trial.
I do not consider that Dr Brereton was applying an incorrect test. He was describing the defendant’s ability to challenge a juror in a perfunctory sense, namely, that he could parrot the words, but not understand what it was that he was doing. It is my view, that is what the defendant did when he was arrested, namely, that he was simply parroting the ‘right’ he had been told about by the police.
I am troubled by any reliance being placed upon that footage as an indication of the defendant’s capacities. When the police attended, he wanted to make phone calls (for a taxi and to his mother) before being told his rights. By the time he was told about his right to make a phone call, he had been in a confrontation with three police officers, sprayed in the face with defensive spray, tasered twice, cuffed, had water poured over his face, put face down on the ground outside and told to stay still. His rights were shouted at him by the police. In that context, his statement that ‘I have my right, I need my phone call to make my phone call’ gives me no comfort about his capacity to exercise his procedural rights or give rational instructions about them at that time or, necessarily, at the time of this trial.
I find that the defendant is unable to exercise (or to give rational instructions about the exercise of) procedural rights.
Section 269H(c)
In addition to the opinion expressed in his report regarding the defendant’s ability to understand the nature of the proceedings or to follow the evidence or the course of the proceedings, Dr Brereton gave evidence that the defendant’s thinking is sufficiently confused that even appreciating the nature of proceedings is fundamentally difficult for him. He gave the example of the defendant’s offer to procure substances for Dr Brereton as a demonstration of his lack of understanding of the nature of what is going on around him and of the context of what is happening to him legally. Further, the defendant was not capable of producing an explanation of proceedings even on a basic level.[21] He might be able to understand the right to silence but the burden of proof is beyond him.[22]
[21]T14.
[22]T14 – 15.
In cross-examination, Dr Brereton agreed that the nature of the proceedings is a pretty basic concept and so he does not say absolutely that the defendant can definitely not understand. However, on balance, he did not consider the defendant can understand the nature of proceedings.[23] He agreed that one aspect of his understanding would be an understanding of the consequences that can flow from a criminal trial. He was taken to paragraph 8.9 of his report where he recounted that the defendant ‘pointed out his good behaviour and that he’d been good for most of his life other than fines when he was just trying to get something from a shop, and he said he spent time in prison, but his description was hard to follow. He spoke about taking himself into prison for stealing and spending five days there.’
[23]T24.
Dr Brereton was asked, assuming those things were true,[24] whether he accepted that demonstrated the defendant understood that imprisonment was a potential consequence of the charges that he faced. Dr Brereton responded, ‘Not necessarily. He was talking about something different at that point, although I’m sure he would understand that prison might be a potential consequence of appearing in court’.[25]
[24]The following facts were agreed:
1.   The defendant was reported for Theft on 26 February 2018 after exiting a Coles supermarket with two razors hidden down the front of his pants.
2.   The defendant was apprehended on the exercise of a warrant on 22 August 2018, appeared before the Elizabeth Magistrates Court and was remanded in custody until 24 August 2018.
3.   On 24 August 2018, the defendant pleaded guilty to Theft. The Magistrate convicted the defendant but discharged him without further penalty having regard to time spent in custody. The Court waived prosecution costs and court fees, but the defendant was ordered to pay the mandatory victims of crime levy of $160.
[25]T25.
Dr Brereton gave evidence that what he reported the defendant said during the interview did not make sense in the context of their conversation and he included that information in his report as an example of how difficult the interview was; it was a thought-disordered conversation. Dr Brereton said ‘out of a salad of words’ he was ‘trying to extract a little bit of meaning so that I have something coherent to illustrate to the court what the topic of our conversation was. But honestly, to say that this is evidence that in that moment during our interview he was showing understanding of the process and the consequences, I’m sorry, that’s just not true’.[26] He confirmed his opinion that, on balance, the defendant is unable to understand the nature of the proceedings.[27]
[26]T26.
[27]T27.
Dr Brereton also gave evidence that ‘on the basis of his interview he was not capable of following my line of questioning for – it was measured in minutes, five minutes and then we would be off on a tangent, and I would have to bring it back around to what I was talking about again so, yes, I would confidently say he wouldn’t follow the evidence’.[28]
[28]T30.
The prosecution submitted that the case would almost exclusively be the playing of the arrest videos. The prosecution would also call the three police officers. The prosecution emphasised the minimum requirement of ensuring the defendant’s trial is not rendered unfair.
Even if the defendant may have some capacity to understand the nature of the proceedings at the minimum level that is necessary, I have no hesitation in finding that he has no capacity to follow the evidence or the course of proceedings.
In my consideration of s 269H(a) – (c), I have kept firmly in mind that the test is not a demanding test and must be assessed in the context of the nature of the charges, the evidence to be heard and the fact the defendant is to be represented by counsel. I find that the defendant does not have the capacity to understand in a general sense the evidence given against him as he hears it. I find he does not have the capacity to understand the substantial effect of the evidence that is given and provide his counsel with instructions in relation to that evidence.[29] I accept Dr Brereton’s evidence about the difficulties of the interview with the defendant and his description of the defendant’s disordered thinking. Dr Brereton gave evidence that it was not clear to him whether the defendant even knew the footage existed let alone had seen it. He emphasised that the defendant was not capable of following his line of questioning which was measured in five minutes.
[29]R v Hayles at [39].
Dr Brereton gave evidence about how the defendant becoming more anxious and increasingly thought disordered when they were discussing the charges. I expect the same would occur upon his viewing of the videos during the trial[30] and his ability to follow questions about those videos.
[30]The arrest footage tendered at the trial of his mental fitness (Exhibit P2) was distressing; it showed the defendant in a highly anxious/agitated state.
I have also had the opportunity to observe the defendant during court proceedings. Of course, I do not decide the question of unfitness based solely on my observations. They only serve to confirm the evidence of Dr Brereton, which I have already accepted. The defendant’s physical appearance in court is as described by Dr Brereton. It was plain to me that the defendant was not following what was being said. He appears as someone who is almost entirely in his own world. He stares with wide eyes into space, occasionally looking around, but demonstrating no facial reaction or engagement with anything that passes in court.
Finding
I find that the presumption has been rebutted and the defendant has established on the balance of probabilities that he is mentally unfit to stand trial. I find that he is unable to respond rationally to the charges or the allegations on which the charges are based (s 269H(a)), that he is unable to exercise or give rational instructions about the exercise of procedural rights (s 269H(b)) and that he is unable to follow the evidence or the course of the proceedings (s 269H(c)).
Upon recording that finding that the defendant is mentally unfit to stand trial, I heard evidence and representations relevant to the question whether a finding should be recorded under this section that the objective elements of the offences are established. I received a notice of admitted facts from the defence. On that basis, I was satisfied beyond reasonable doubt that the objective elements are established and recorded a finding to that effect.