R v Lindsay - [2013] SASC 104

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v LINDSAY
[2013] SASC 104
Judgment of The Honourable Justice Sulan
2 July 2013
CRIMINAL LAW - PROCEDURE - FITNESS TO PLEAD OR BE TRIED - DETERMINATION OF ISSUES
The defendant is charged with murder - the defendant contends that he is unfit to stand trial - the defendant contends that he is unable to exercise procedural rights or give rational instructions about the exercise of procedural rights - the defendant further contends that he is unable to understand the nature of the proceedings or to follow the course of the proceedings.
Held: Application refused. The defendant is not unfit to stand trial.
Criminal Law Consoldiation Act 1935 (SA) s 269H, s 269I, referred to.
R v Stevens (2010) 107 SASR 456; R v Presser [1958] VR 45; Ngatayi v The Queen (1980) 147 CLR 1; Kesevarajah v R (1994) 181 CLR 230, considered.

R v LINDSAY
[2013] SASC 104
Criminal

SULAN J: This is an application by the defendant, Michael Joseph Lindsay, for a finding to be recorded pursuant to section 269H of the Criminal Law Consolidation Act 1935 (SA) that he is mentally unfit to stand trial.
The defendant is charged with one count of murder. The particulars of the offence are that on 1 April 2011 at Hallett Cove, he murdered Andrew Rodger Negre.
The prosecution case is that on the night of 31 March 2011 the deceased and his girlfriend attended at a number of hotels to drink and play the pokies. At about 11pm the deceased’s girlfriend drove home, leaving the deceased at an hotel. Sometime after 12:00pm on 1 April 2011, the defendant and some friends arrived at the hotel. Although the deceased did not know the defendant or his friends prior to this night, the deceased was seen leaving the hotel with the defendant and others. The deceased travelled with the defendant and others to the defendant’s home in Hallett Cove. There the deceased drank alcohol and socialised with the defendant and others at the house. While at the house, the deceased made a gesture at the defendant while the defendant was sitting down. This gesture was construed as having a sexual connotation. The defendant spoke angrily to the deceased, who said the gesture was only a joke. Later, the deceased made a sexual comment to the defendant. This angered the defendant. It is alleged that the defendant beat the deceased, searched his pockets for a wallet or money, and then stabbed him. The deceased’s body was found in a creek bed in Hallett Cove on 8 April 2011. The deceased died as a result of multiple stab wounds. Luke Hutchings, who is said to have been present at the time of the stabbing, is also charged with murder.
Pursuant to section 269I of the Criminal Law Consolidation Act, a person is presumed to be mentally fit to stand trial unless the contrary is established following an investigation under Part 8A of the Act. It must be established on the balance of probabilities that a defendant is mentally unfit to stand trial.[1] The defendant has elected for this inquiry to be conducted by a judge sitting without a jury.
[1] R v Stevens (2010) 107 SASR 456.
Section 269H of the Criminal Law Consolidation Act provides:
A person is mentally unfit to stand trial on a charge of an offence if the person's
mental processes are so disordered or impaired that the person is—
(a)     unable to understand, or to respond rationally to, the charge or the allegations
on which the charge is based; or
(b)     unable to exercise (or to give rational instructions about the exercise of)
procedural rights (such as, for example, the right to challenge jurors); or
(c)     unable to understand the nature of the proceedings, or to follow the evidence
or the course of the proceedings.
Defendant’s brain injury
On 21 March 1986, when the defendant was aged one year and nine months, he was struck by a motor vehicle after wandering onto the road. He suffered a severe head injury and was taken to the Adelaide Children’s Hospital. He spent two days in intensive care until his breathing stabilised. He was discharged from hospital 12 days later.
The defendant was involved in a second accident on 9 December 1991 when he was seven years of age. He was struck by a car having walked out in front of a stationary bus. He suffered a laceration to his scalp which was stitched under local aesthetic. He was kept in hospital overnight for observation and released the following day.
Following the head injuries, the defendant’s development was monitored and a series of reports were prepared. In 1994, when the defendant was aged 10 years, a psychological assessment conducted by Mr Woodroffe indicated that he had a significant intellectual handicap. The measure of his overall mental ability was in the mild retardation range suggesting that he had a mental age of 5-5.5 years. Another report prepared that year indicated that the defendant appeared to have a behaviour disorder as well as memory and concentration problems. In 1998 a psychologist, Dr Bollard, assessed the defendant as having a significant intellectual impairment, with his general intelligence falling within the mild mental health retardation range. The defendant exhibited specific impairment of attention, concentration and memory, impulsivity, mood swings, coordination problems and an inability to discriminate the motives of other people in interpersonal relationships, thus putting him at risk of manipulation. In 2003, Dr Clark, a neuropsychologist, noted that the defendant fell in the retarded range of intellectual function despite nine years of schooling and that he lacks any tenable reading, writing and numeracy skills. Dr Clark also assessed the defendant’s capacity for attention and concentration was extremely limited. He appeared to be unable to focus his activity for more than a few moments and his verbal learning and memory skills were defective.
In 2007 when the defendant was aged 23 years, he was awarded $2,215,800 including interest for the motor accident he was involved in as an infant. The Public Trustee manages the defendant’s financial affairs following an earlier application to the Guardianship Board for an independent person to administer his financial affairs.
Evidence of Mr Richard Balfour
Mr Richard Balfour is a registered psychologist with experience in clinical and forensic psychology. He holds a Bachelors degree (honours) in psychology from Flinders University and a Masters degree in clinical psychology from the University of New South Wales.
Mr Balfour first saw the defendant in 2003 when the defendant was aged 18 years. At the time, the defendant was charged with aggravated serious criminal trespass and larceny, illegal use and unlawful possession. Mr Balfour was asked to psychologically assess the defendant to determine whether he was fit to stand trial. In his report dated 13 May 2003, Mr Balfour noted the two head injuries which the defendant had sustained. Mr Balfour’s opinion was that, despite a mental impairment, the defendant was fit to stand trial. Mr Balfour stated:
I believe that Mr Lindsay clearly meets the legal definition for having a mental impairment. However, I do not believe that his level of cognitive impairment is so severe that he is unfit to stand trial. He has a sufficient understanding of the charges and basic legal rights. With patient questioning he would be able to instruct his defence counsel sufficiently to enable a fair defence case to be formulated. He exhibits some confusion regarding aspects of the court process but has the necessary intellectual capacity to learn these concepts at a rudimentary level. He would benefit from intense education to further orientate and educate him about the court process. I believe that he would experience some difficulties comprehending the proceedings in a court. However, with rest breaks and assistance from his defence counsel, he would be able to sufficiently appreciate the gist of proceedings in a court. Overall, I would consider Mr Lindsay fit to stand trial.
Mr Balfour again assessed the defendant in 2012. He was asked to determine whether the defendant was fit to stand trial for the offence with which he is currently charged. In a report dated 1 April 2012, he concluded that the defendant was not fit to stand trial. The report was based on a two hour clinical interview of the defendant conducted at Yatala Labour Prison, two hours of psychological testing and consideration of a number of other reports and documentation.
Mr Balfour assessed the defendant as having an intellectual disability of moderate severity with a level of intelligence in the bottom 0.1 percent of the general population for the age group 25 to 30 years or as having an IQ score of 54. The defendant performed poorly in testing in vocabulary, general knowledge, capacity for abstract social problem solving, comprehension, general capacity for problem solving, speed of information processing, and capacity for new learning. Mr Balfour found that the defendant’s ability for sustained attention and new learning were consistently severely impaired and that the defendant’s immediate and short terms memory was consistently severely impaired.
Two subsequent reports were prepared by Mr Balfour. The first was dated 5 September 2012. It followed the receipt of transcripts from telephone conversations between the defendant and his family and friends whilst the defendant remained in custody. The second report of 11 June 2013 followed the receipt of material regarding the Public Trustee’s management of the defendant’s financial affairs and included a statement by the defendant’s case manager, Mr Peter Kora. In both reports, Mr Balfour concluded that the further information did not alter his opinion that the defendant was unfit to stand trial.
The basis of Mr Balfour’s conclusion that the defendant is not fit to stand trial is summarised in his June 2013 report. In reference to s 269H(c) of the Criminal Law Consolidation Act 1935 (SA), he states:
(c) unable to understand the nature of proceedings, or to follow the evidence or the course of proceedings.
I believe the (c) criteria of the legal test for fitness is the most problematic barrier for Mr Lindsay to overcome to be found legally fit to stand trial.
I do not believe that Mr Lindsay has to follow all the legal complexities, or the totality of the evidence, of the legal proceedings during a criminal trial. I believe that he has only to understand the gist of the evidence and legal proceedings, he has to understand the general themes of what is happening. I also believe that he does not have to understand the forensic technicalities of the evidence, but rather their implications regarding his guilt and innocence. I have consistently maintained in the past when providing expert evidence in court, the mentally impaired defendant has only to understand the gist.
I believe that Mr Lindsay’s criminal murder trial will be a legal marathon which will last longer than a fortnight. Furthermore, the complexity of the trial will double because there is a co-accused who I assume will be trialled at the same time as him.
Mr Lindsay clearly has neurocognitive deficits in problem solving, information processing, short-term memory functioning, concentration, and cognitive stamina. I do not believe that he is capable of following the gist of the legal proceedings, and evidence, during a lengthy criminal trial. He will suffer from information overload and become detached and alienated from the trial process.
I believe the final issue to be considered is whether Mr Lindsay can become legally fit to stand trial if special concessions are made for his intellectual and cognitive limitations to assist him comprehend the gist of the evidence and proceedings during a trial. I do not believe the implementation of special supports, or concessions, would assist Mr Lindsay enough to make him legally fit to stand trial.
Overall, I believe that on the balance of probabilities Mr Lindsay is legally unfit to stand trial because he fails the (c) criteria of the legal test to stand trial.
I do not believe that Mr Lindsay will become legally fir to stand trial during the next 12 months
In relation to s 269H(b) of the Act, regarding the defendant’s ability to exercise his procedural rights, Mr Balfour concludes:
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
Mr Lindsay is not a legally naive defendant. However, he has never participated in a criminal trial before. Despite his frequent contact with the criminal-justice system, he has only acquired an impoverished and incomplete understanding of fundamental concepts relevant to legal fitness. He has struggled to acquire a concrete understanding of some legal concepts. He is prone to parroting Information. He understands what it means to plead guilty, or not guilty, and the likely legal consequences. He understands that his lawyer’s role is to assist him. Despite these gaps in his knowledge, I believe that that he has passed the (b) criteria of the legal test of fitness to stand trial.
Mr Balfour was cross-examined on a range of topics, including the defendant’s conduct on previous occasions when he had been arrested and appeared to understand and exercise his rights.
Mr Balfour was shown a DVD which contained footage of when the defendant was arrested for the present charge. During the video, the defendant states that he does not wish to answer any questions and asks for his lawyer by name. The defendant becomes visibly frustrated at being held in police custody and states that he wants to go back to the Adelaide Remand Centre because he is expecting a visit from his sister. The defendant suggests to the police a number of alternatives strategies for expediting matters including contacting a different lawyer and moving him to the holding cells in the Magistrates Court. Mr Balfour accepted that the defendant displayed a degree of thinking or planning and that he was able to problem solve to achieve his goal.
After reviewing the material for the first time during his evidence, Mr Balfour concluded that his opinion that the defendant is unfit to stand trial was not altered.
Mr Balfour gave evidence that the psychological testing which he administered on the defendant was but one aspect of determining a person’s fitness to stand trial. He accepted that the more relevant information that a person has, the better position he or she is in to assess fitness to stand trial. Mr Balfour accepted that factors such as the sophistication of previous offending, intellectual capacity, ability to operate a mobile phone or computer, how a person functions and interacts with others in society and a person’s living skills such as financial management and ability to go shopping are all relevant factors in determining a person’s fitness to stand trial.
Mr Balfour gave evidence that nine years have lapsed since his first report was prepared and the defendant’s cognitive functions have deteriorated in that time. Mr Balfour noted the defendant’s ongoing history of cannabis and alcohol use. Mr Balfour considered the complexity of the charge the accused currently faces is greater than the charges faced in 2003.
Mr Balfour was asked how he judged the complexity of a trial. He said that it was his impression that murder trials are complex due to the number of questions witnesses are asked, the duration of the trial and the number of items of evidence. Mr Balfour also believed that the fact that there would two co-accused would add to the complexity of the trial.
I consider that Mr Balfour did not have sufficient material or understanding of the facts alleged in this case to support his conclusions about the complexity of the trial. The prosecution case is that during the events of the evening and at the defendant’s house, the deceased was assaulted and stabbed to death by the defendant. The facts are within a narrow compass, and are not difficult to comprehend. The defendant is not required to understand difficult legal questions which might arise. He has counsel to advise and explain the relevant issues to him. Counsel for the defendant submits that the factual issues may become more complex, depending upon the instructions he was given. He did not point to any specific instructions which would result in the case becoming so complex that the defendant would be unable to comprehend or give adequate instructions. I am satisfied, for reason which I discuss later, that the trial would not be too complex so that the defendant would be unable to follow the proceedings or understand them, and would be able to give instructions to his lawyers.
Mr Balfour was asked about his report dated 5 September 2012 and his conclusion that the receipt of the transcripts from telephone calls did not alter his opinion that the defendant was unfit to stand trial. During his evidence it was revealed that he had not received or considered two of the transcripts.
The following exchange occurred between the defendant and another male in the first of the transcripts:
MALE 1: Why have they charged you?
LINDSAY: I don't know, I'm just waiting on the declarations hey
MALE 1: Dec1arations from
LINDSAY: The courts like where, all the evidence what people have been saying or they want declarations you know, that's what they call it declarations
MALE 1: Yeah
LINDSAY: Yeah
MALE 1: What are they the statements that have been put in?
LINDSAY: I don't know I don't want to say no more on the phone here Dad
MALE 1: Yeah, yeah
…
LINDSAY: Just leave, just leave it I will, I'm just waiting for declarations it’s just shit anyway I would never kill now cunt ever, never mate I would never do that fuck that yeah
LINDSAY: You know they sent me $200 the other day and got...to buy a suit for me now for court and buy a suit for sentencing and parole. I should be out soon anyway… came in today, I put a letter in and as long as I get my parole, I can apply for bail when I finish and get my parole for bail, that's all I’m in for parole breach anyway so I will get bail on the other charges
MALE 1: Yep
LINDSAY: I even said l would pay 10 grand for bail you know get out and yeah. Do the right thing and stuff yeah
…
LINDSAY: I will be out on bail, I just hoping to get my parole back that is one thing that's all that's why I never applied for bail cause I could I apply for bail if I got a parole breach you know
MALE 1: Yeah
LINDSAY: Yeah
MALE 1: And when do they hear that then
LINDSAY: Hey
MALE 1: Do you have to put in a letter
LINDSAY: Yeah, yeah if I put a letter in tomorrow and it effects… straight away, probably about 13 days 14 days to get parole hopefully and if they knock me…wanting to see me now
MALE 1: Ah yeah, yeah
LINDSAY: …might not put a letter in I might just wait for next month you know what I mean so then that's 2, that’s 2 months off parole and it leaves me with 14 months when I've got 16 you know
MALE 1: Yeah
LINDSAY: …saw ... today and he was like mum why don't you put a letter is so he can get bail, get bail you and l was like nah jam it up the fucken arse. I already put the paper and ripped it up the other day I don't know you was coming in you should have told me hey, I ripped it up I said to them I ripped the parole papers up
MALE 1: Yep
LINDSAY: Yeah chucked it in the bin and he goes can I still...and I goes yeah you can still write a letter but I just haven't got the paper today have a look at it to see what it says it's only a breach
The second of the transcripts revealed that the defendant had a greater knowledge of his financial position than he made apparent to Mr Balfour during the two hour interview that was conducted at Yatala Labour Prison.

Upon considering this material, Mr Balfour reversed his opinion regarding the defendant’s fitness to stand trial. He concluded that the defendant would be able to understand the evidence sufficiently to stand trial. Mr Balfour stated that the material in the transcript indicated that the defendant had a more sophisticated understanding of legal concepts and the criminal justice system than the defendant had revealed to him during the interview. Mr Balfour said that the defendant was much less forthcoming in his interview responses and he accepted that the defendant presented as a much different person in the phone calls than he did in the interview.
Mr Balfour stated that, despite his change of opinion, the defendant would still require support and concessions at his trial. He said that breaks approximately every hour would be required for the defendant to consult with his solicitors.
Evidence of Mr Mark Reid
Mr Reid was appointed by this Court to provide a neuropsychological report. He has a Masters Degree in Clinical Psychology and is admitted to the Colleges of Clinical Neuropsychology and Forensic Psychology within the Australian Psychology Society.
Mr Reid first saw the defendant in May 2012. He interviewed the defendant for about one hour followed by about 45 minutes of psychological testing. He did not assess the defendant’s intellectual functioning, as Mr Balfour and other psychologists had conducted those tests. Mr Reid concluded that testing for intellectual functioning is of limited assistance in attempting to answer questions pertaining to a person’s fitness to stand trial.
In May 2012, Mr Reid concluded that the defendant was not fit to stand trial. He stated the basis of his conclusion:
With regard to Section 269H (Mental Unfitness to Stand Trial), I do not believe Mr. Lindsay is fit to stand trial. With regards to the specifics of S. 269H:
a)   I believe Mr. Lindsay does have the capacity to understand and respond rationally to the charge or allegations on which the charge is based, albeit at a very simplistic level.
b)   I do not believe that Mr. Lindsay would have the intellectual capacity to provide his defending counsel with rational instructions about his defence, nor do I believe he has the intellectual capacity to understand his procedure rights, even if these were explained to him in relatively simple terms. I do not believe he has the capacity to fully comprehend and integrate his various procedural rights and on this basis, subsequently instruct his lawyer or barrister on how to utilize these.
c)   I do not believe Mr. Lindsay would have the capacity to understand the nature of proceedings or to follow the evidence or course of the proceedings in a trial. Mr. Lindsay would have difficulty comprehending the language used, even if allowances were made for this and I believe his attention and concentration span, along with his ability to learn and retain new information, is at a level where he not could [sic] follow and remember proceedings. Mr. Lindsay would simply become confused with the information, be unable to analyse the information, be unable to analyse this effectively and therefore be at a very significant disadvantage
Furthermore, I do not believe that any assistance could be put in place which would overcome these barriers to his mental unfitness to stand trial. Given that his intellectual difficulty is a lifelong condition there is no likelihood of this changing over the following twelve months.
Mr Reid prepared two subsequent reports dated 11 September 2012 and 12 June 2013. These reports were prepared following the receipt of the transcripts from telephone conversations and the material relating to the defendant’s dealings with the Public Trustee, respectively. Mr Reid concluded that the additional information did not cause him to alter his opinion regarding the defendant’s fitness to stand trial.
Prior to giving evidence, Mr Reid was provided with a copy of the transcript of evidence given on the previous day by Mr Balfour.

The fact that Mr Balfour reversed his opinion did not cause Mr Reid to alter his opinion as expressed in his reports. He explained that he considered some of the test results and personal history that Mr Balfour had obtained but that his opinion was not dependent upon the findings of Mr Balfour.
Mr Reid explained that the testing he administered demonstrated that the defendant does not have the cognitive capacity to give rational instructions about the exercise of his procedural rights or to follow the evidence or course of proceedings. This is primarily due to the defendant’s memory difficulties and his difficulty integrating and reasoning from information. Mr Reid stated that the defendant would not be able to remember more than a relatively small amount of information and that he would have trouble retaining and integrating the information. As compared to a person of average intellect, the defendant does not have the cognitive capacity to store different bits of information and effectively use it to instruct his lawyers. Mr Reid said that the defendant would not be assisted by prompts and reminders by his lawyers of the information because he had not effectively stored that information in the first place.
In cross-examination, Mr Reid stated that the defendant is more likely to recall information which is salient to him. There would be a greater chance of him being able to store and recall information which is more emotionally laden such as information that was specifically related to his actions and actions of people that are close to him like family members and people who were present at the time of the alleged offence. Mr Reid stated that the defendant would be able to answer direct questions posed to him from his counsel such as, “is he or she telling the truth” and be able to process small amounts of information that were relayed to him by his counsel. He would also have the capacity to answer direct questions.
Mr Reid saw his role as providing empirical and probative information to assist the decision-maker to decide the ultimate issue. Mr Reid accepted that it would be relevant for the decision-maker to take into account a range of information. This information includes how an individual functions in everyday life, skills for budgeting and ability to deal in formal and informal social settings.
Mr Reid was cross-examined on a number of anomalies in the responses that the defendant provided to him as compared to other people to whom the defendant provided information. Mr Reid stated that, from the information the defendant gave him during his interview, he found it hard to accept that the defendant had told another psychologist that he was unable to determine whether it was more serious to steal a television or commit murder. There were also inconsistencies in the responses the defendant provided in relation to the amount of compensation he received following the motor vehicle accident, his ability to recall the descent of his mother and with the status of his relationship with his de facto partner. Mr Reid gave evidence that if he was aware of all of these anomalies at the time of preparing his report, it would have led him to form a hypothesis that the defendant was probably under-reporting and he would have completed further testing to attempt to determine the cause of the under-reporting. He gave evidence that people may under-report for a variety of reasons including stress, depression or fabrication.
Evidence of Dr Emma Scamps
Dr Scamps is a clinical neuropsychologist who has, among other qualifications, a Graduate Diploma in Applied Psychology and a PhD in Psychology. She has provided about 10 fitness to stand trial reports in the past, for less serious charges than the charge against the defendant. She had relatively little experience of giving evidence.
Dr Scamps interviewed the defendant for about 90 minutes at Yatala prison on 30 May 2013. Dr Scamps said the defendant presented as comfortable in interview and relaxed. She noted that the defendant could not write his name.
Dr Scamps said she would have liked to interview the defendant for longer, but that after 90 minutes the defendant could no longer concentrate. The defendant was easily distractible. Dr Scamps said that this distractibility did not materially affect the validity of her tests.
Dr Scamps did not explore the defendant’s personal history in detail because it had been documented in other reports. She asked some questions as to personal history, in order to compare the defendant’s responses to other reports. She was satisfied that the defendant was providing accurate information.
Dr Scamps conducted what she accepted was an incomplete battery of tests. Her tests were executive function tasks which assess frontal lobe function. Dr Scamps assessed the defendant’s literacy and his ability to comprehend and problem solve. As to comprehension, the defendant was said to be severely impaired. Only one test administered by Dr Scamps assessed memory, and in that test the defendant performed well below average. In cross examination Dr Scamps accepted that the defendant had performed much better in memory tests conducted by Mr Clarke and Mr Said in 2003 than he had in the tests she conducted.
In relation to section 269H(b), Dr Scamps was initially of the opinion that the defendant does not have the capacity to give rational instructions to his lawyer or understand his procedural rights. In arriving at her opinion, Dr Scamps said she had regard to the complexity of the trial. She did not have the analysis of the prosecution case or witness statements which had been provided to other expert witnesses. Dr Scamps based her view of the nature of the case on information in Dr Raeside’s report. She knew the defendant was charged with murder. She assumed the defendant would be listening to evidence over a period of days to weeks. She assumed the trial would be conceptually complex.
Dr Scamps gave evidence that the defendant would have trouble rationalising whether or not to challenge jurors. She said that the defendant would recognise people with whom he associates regularly and would be able to say “I know that person.” She said that, with advice, the defendant would be able to rationalise that, for example, a person charged with bank robbery may challenge a juror employed as a bank manager. She said the defendant could understand advice as to whether or not to give evidence, but may not understand the implications of this decision. She said that with advice the defendant would understand the election between trial by jury or by judge alone, although he may have difficulty understanding the implications of such an election. Dr Scamps said the defendant would have difficulty understanding the strategic considerations which may underlie an election for trial by jury or judge alone, and may underlie the decision to give evidence. In cross examination she accepted that if some of those strategic considerations were explained to the defendant in concrete terms, he would understand them.
In a letter tendered following her evidence, Dr Scamps said that by the end of cross examination, she was of the opinion that the defendant was not unfit to stand trial under s 269H(b).
In respect of s 269H(c), Dr Scamps was initially of the opinion that the defendant does not have the capacity to understand court proceedings even if information is carefully explained to him in a simple manner. He distracts easily and is unlikely to be able to maintain his attention. He will have difficulty processing information, particularly if he fatigues or has been in court for an extended period.
Dr Scamps said that her opinions as to s 269H(c) were partially based on the history of the defendant with which she was provided.
Following Dr Scamps giving evidence, she was provided with the transcript of the evidence of Mr Mercer, Mr Kora and Mr Nicotra, as well as the exhibits from this investigation. As a result of this evidence, Dr Scamps changed her opinion as to s 296H(c). Her final opinion was that the defendant is fit to stand trial.
In the case of Mr Reid and Dr Scamps, neither counsel sought to re-call the witnesses. Counsel submitted that I could rely on their written reports.
Evidence of Dr Craig Raeside
Three reports of Dr Raeside were tendered. He did not give evidence. Dr Raeside is a consultant forensic psychiatrist who has worked in that field since 1993. He provides regular psychiatric evidence in the courts of this state by way of written reports and oral evidence. Dr Raeside did not give evidence. In his reports Dr Raeside comments that the defendant’s impairment is related to an acquired brain injury with associated cognitive and intellectual incapacity. This area falls outside Dr Raeside’s area of expertise. Dr Raeside stresses in his reports that his opinion as to the defendant’s fitness to stand trial is heavily reliant on the opinion of the psychologists.
Dr Raeside’s opinion is that the defendant has an underlying Antisocial Personality Disorder, a personality style often associated with a history of childhood abuse and neglect, and poor educational and social opportunities and attainments. He deferred to the assessments of the psychologists that the defendant is suffering a moderate intellectual disability.
Dr Raeside said that, based on his clinical assessment of the defendant, his opinion was consistent with that explained in Mr Reid’s report, that the defendant was unfit to stand trial. In particular, the defendant would have difficulty following the course of proceedings and would be unable to provide adequate instructions. Dr Raeside added that the defendant has been in and out of the criminal justice system since his teens. He has not been found unfit to stand trial previously. Unless there has been a marked change in his impairments (which Dr Raeside thought unlikely), the defendant would have been unfit on earlier occasions.
Following his first report, Dr Raeside was provided with transcripts of telephone conversations of the defendant in gaol. He provided a brief report in response dated 13 August 2012. He stated that the transcripts show the defendant understands the nature of charges, the difference between a plea of guilty or not guilty, and at least some evidence. He also appears to understand sentences, non parole periods, parole and bail.
Dr Raeside stated that the transcripts do not add much in terms of assessing the defendant’s ability to follow court proceedings. He again deferred to the opinion of the expert psychologists, and maintained his earlier opinion that the defendant is unfit to stand trial.
Dr Raeside was later provided with two volumes of documents related to the defendant’s involvement with the Public Trustee. A third report dated 4 June 2013 was tendered. Dr Raeside’s opinion is the defendant’s inability to adequately manage his finances, even with the support of the Public trustee and Disability SA, is consistent with his cognitive impairment. Dr Raeside noted that the skills required to follow court proceedings are different to those required to request money from the Public Trustee.
Evidence of Ms Bridget Mildwaters
Ms Mildwaters met the defendant 1-6 months prior to his arrest, at the house where she and her partner, the co-accused in this matter, were staying. The defendant would come to that house once a month or so. At one point the defendant invited the co-accused and Ms Mildwaters to live at the house he owned at Hallett Cove. The co-accused and Ms Mildwaters moved in, sharing the house with the defendant, his partner, and their son. None of these people worked, and would spend a lot of time together at the house. Ms Mildwaters lived with the defendant for 1-2 months.
At some point the defendant told Ms Mildwaters what he had paid for the house, and what he thought his car and other assets were worth. He told her that his money collects interest while he is in gaol.
The defendant had told Ms Mildwaters that he had a brain injury. She said she did not notice this in the things he did, and that he could communicate with her and others in the house. He could be vague at times, and would stare into space. He did not stand out in terms of intellect amongst the others in the house and visitors. People did not need to make special allowances to help him.
Evidence of Dr Lacey Noakes
Dr Noakes is a medical practitioner who qualified to practice in 2006 and has worked as a doctor since that time. She currently works in a private general practice. For a period of two years concluding September 2012, Dr Noakes worked on and off for Prison Health. During this time she did a significant amount of psychiatric work, which included making assessments as to prisoners’ risk of self-harm. She has made hundreds of assessments of prisoners.
Dr Noakes met with the defendant on 14 September 2011. When Dr Noakes arrived at the gaol that day for her afternoon clinic someone approached her and said that the defendant had to be the first prisoner she saw that day. The person said it was regarding whether the defendant had testimonial capacity to change his Will.
She met the defendant in a doctor’s consulting room in the gaol. She spent roughly 15 minutes with him. He presented as pleasant and cooperative, answering questions appropriately. Dr Noakes had no difficulties understanding the defendant, although he spoke slower than would be expected of someone without a brain injury. Dr Noakes described this as a minor observation; it was obvious that the defendant thought before answering questions.
The defendant told Dr Noakes why he wanted to see her, and reported a brief history of his injury, compensation award and the involvement of the Guardianship Board. The defendant said he lived independently with his son and his partner, who was not on a carer’s pension.
The defendant passed a simple test of his short term memory. Dr Noakes determined that the defendant had testamentary capacity. She had no concern about his testamentary capacity, though she said that she was only prepared to make that assessment for that point in time. She understood that immediately after her meeting the defendant was to alter his Will.
Dr Noakes’ evidence is of limited assistance, as she spent only a short time with the defendant. Her evidence is consistent with other evidence from persons who had considerable dealings with the defendant.
Evidence of Mr Colin John Mercer
Mr Mercer is a senior case manager at the Department of Correctional Services. He has held that position for almost 6 years, having previously worked in a similar role in the UK. As part of his job he is required to monitor, supervise and help rehabilitate parolees who have a high risk of reoffending.
Mr Mercer first met the defendant on 30 March 2010, while the defendant was in gaol. Mr Mercer became the defendant’s parole officer on release. Mr Mercer knew of the defendant’s acquired brain injury before the meeting. The defendant appeared to understand Mr Mercer.
The defendant was released on parole. Mr Mercer met him at a Department of Corrections office on 7 April 2010. From that date to the end of his parole, the defendant was required to report to Mr Mercer every two weeks. Initially, the defendant attended every appointment. He was required to sign in at each session. Mr Mercer described the defendant’s signature as normal. The defendant would sign his full name.
Each appointment with Mr Mercer lasted between 20 and 40 minutes. He talked to the defendant about drug and alcohol use, relapse prevention strategies, negativity, misguided loyalty with criminal peers and general basic problem solving. The defendant contributed to these discussions and was open, reflective and respectful. Mr Mercer had no difficulty understanding the defendant. It appeared the defendant understood Mr Mercer. On some occasions Mr Mercer had to simplify his approach. When asked how the defendant’s communication skills compare against the spectrum of parolees, Mr Mercer said “average.” The defendant did not indicate any problems with his memory. The defendant could recall what was discussed in previous meetings. He had insight into the impact of alcohol on his life and the impact of being around the wrong crowd. His understanding was demonstrated by his compliance with directions.

The defendant missed one appointment with Mr Mercer in each of September, October and December 2010. The defendant missed both his March 2011 appointments which resulted in a warrant being issued for his arrest. On 28 April 2011 Mr Mercer met with the defendant at the Adelaide Remand Centre, for the purpose of preparing a pre-sentence report. The meeting lasted approximately an hour. Mr Mercer had asked the defendant about the effect of peer pressure, and the defendant said he knows what to do in most circumstances. The defendant would consistently put across that he is his own man. He acknowledged that he was not always honest and upfront with Mr Mercer. Mr Mercer is of the view that the defendant has some insight into the impact his offending has on the community.
Mr Mercer was a careful and thoughtful witness. I accept his evidence. I conclude that the defendant comprehends instructions that he is given. He understands the system and the role of a parole officer and the requirements of parole. He is able to recall past events and has insight into his offending.
Evidence of Dr Barry Graham Schultz
Dr Schultz is an experienced general practitioner who has practised since 1978.
Dr Schultz first met the defendant when the defendant was an infant. The defendant’s mother attended upon Dr Schultz for the sorts of medical issues which are standard amongst children. During this time, Dr Schultz became aware that the defendant had been involved in a very serious motor vehicle accident when he was about 2 years of age. Dr Schultz facilitated the defendant’s treatment by providing referrals.
On 11 July 2006 the defendant attended at Dr Schultz’s practice for the first time as an adult. The consultation lasted in excess of 40 minutes. Dr Schultz remembered the defendant, and the defendant appeared to remember him. Dr Schultz had no difficulty communicating with the defendant. The defendant did not appear to have any difficulty of understanding. The defendant discussed his frustration with the Public Trustee and his chronic insomnia problem. Dr Schultz believes anxiety and depression were of concern at the time.
Dr Schultz filled out paperwork for an application for a carer’s pension. This required him to provide a historical medical assessment of the defendant. It was not his role to assess the claim for a pension. Dr Schultz indicated that the defendant suffers from physical, intellectual and psychiatric disabilities. He did not conduct any psychological assessments. He did conduct a brief cognitive function test. This included requiring the defendant to count backwards from 20 to 0, which the defendant completed successfully. A number of other tests were also successfully completed, though the defendant failed a test of his memory, which required him to repeat a phrase told to him earlier. Dr Schultz said many people fail the memory test. The defendant signed his name on the form.
Dr Schultz again saw the defendant on 20 July 2007. The defendant had with him some forms relating to a carer’s pension.
On 7 September 2010 the defendant met with Dr Schultz again, accompanied by his partner at the time, Melissa Glover. The consultation was for 50 minutes. The defendant complained about how the Public Trustee was restricting his freedom. At the time the defendant was suffering from headaches. He requested a CT scan. Dr Schultz has no record of the defendant having had a CT scan completed. Much of this consultation was regarding the defendant’s testamentary capacity. The defendant was interviewed. During the interview, he did not lose his train of thought. He did not appear to struggle for memory. He did not demonstrate any deficiency in his ability to recall events.
I accept Dr Schultz’s evidence. His evidence supports the conclusion that, although the defendant suffered a severe brain injury, he is able to communicate and recall events important to him.
Evidence of Mr Peter Kora
Mr Kora has worked for the Public Trustee for about 26 years. He administers financial matters for those who are unable to take care of their own finances.
The Public Trustee became involved in administering the defendant’s financial affairs, pursuant to an order of the Guardianship Board made as a consequence of an application by the defendant’s stepfather. Initially, the Public Trustee was involved in managing the defendant’s funds resulting from a Centrelink pension. On 15 November 2007 the District Court approved a compromise to the defendant of $2,215,800 including interest. The defendant received his compensation in 2008, and his pension was stopped. It was at this time that Mr Kora began working with him.
Mr Kora held an initial meeting with the defendant and Melissa Glover at the Public Trustee office. Mr Kora discussed the defendant’s compensation payment and started organising a budget. From this time onwards Mr Kora has administered the defendant’s finances. The defendant remains a client of Mr Kora.
The defendant and Ms Glover contacted Mr Kora every two to four weeks to request additional funds. Mr Kora has regularly discouraged the defendant from spending money. Sometimes, when requesting money, the defendant negotiated with Mr Kora and provided detailed reasons as to why he needed the funds. Mr Kora explained the benefits of a pre-nuptial agreement to the defendant, which the defendant understood.
Mr Kora has remained in contact with the defendant since his incarceration for the charged offence. Mr Kora has visited the defendant twice in jail. On 8 December 2011 Mr Kora and his manager met with the defendant in gaol for the first time. The defendant discussed selling his Hallett Cove property. He discussed the purchase or rental of a property for Ms Glover. The defendant made some observations about a courtyard home, which he subsequently rented for Ms Glover. The defendant said he would like the Hallett Cove property to be rented out. He inquired about what would happen if a tenant damaged the property. The defendant also discussed purchasing a property for his son.
The defendant discussed with Mr Kora the provision of appropriate accommodation for his former partner, Ms Glover, and their son. He understands the need to provide a secure environment for his family.
At one point the defendant telephoned Mr Kora and said he needed clothes for court appearances. He explained to Mr Kora the location of a clothing shop where the defendant had been. The defendant described the colour and pattern of a suit he had seen in the shop. Mr Kora arranged for a suit to be purchased and provided to the defendant.
Mr Kora gave evidence that the defendant’s arguments were logical, persuasive and persistent. Mr Kora had no difficulty understanding the defendant and does not believe the defendant has any difficulty understanding him. Mr Kora said the defendant appears to have a good memory. The defendant had no greater difficulty in communicating or processing information than his other clients.
Mr Kora gave careful and considered evidence. I accept his evidence. The defendant is unable to manage his affairs because he is inclined to squander his wealth. Nevertheless, the defendant is able to comprehend his financial position.
Evidence of Mr Joseph Dean Nicotra
Mr Nicotra works as a Wills Officer at the Public Trustee office. As a Wills Officer, he is required to interview clients and assess whether they have testamentary capacity. Where a client does have capacity, Mr Nicotra will assist in the drafting and execution of a will.
Mr Nicotra has had three groups of contact with the defendant. On 26 August 2011 he met with the defendant at Yatala Labour Prison. The meeting lasted about an hour. Mr Nicotra had been told that the defendant wanted to change his Will. He asked questions about the defendant’s personal information, such as his date of birth and used this information to partially complete a Will Instruction Form. Having satisfied himself that the defendant answered the questions reasonably well, Mr Nicotra proceeded to talk about the defendant’s previous Will.
Mr Nicotra talked about the changes the defendant wanted to make to his existing Will by reference to a copy of it, on which changes were marked in handwriting. The defendant answered questions in a prompt, logical and understanding manner. The defendant was aware of his asset position and whom he wished to benefit upon his death.
On 14 September 2011, Mr Nicotra saw the defendant again, this time with a witness present. The defendant was taken through the Will Instruction Form. He did not appear to have any difficulty remembering what had occurred at the last meeting, and remembered the contents of his existing Will. Mr Nicotra prepared a new Will. The defendant wrote his name and signed every page of the Will.
Mr Nicotra saw the defendant on 8 June 2012 and questioned the defendant for the purposes of compiling personal information and asset details which were entered on a Will Instruction Form. The defendant presented as well as he had on the two previous occasions.
On 25 June 2012 Mr Nicotra visited the defendant. The defendant again presented extremely well. He was logical and friendly. He remembered details of previous meetings. The defendant knew his assets’ value. Mr Nicotra said a particularly difficult clause of the Public Trustee wills is the appropriation clause. Mr Nicotra explained to the defendant how this clause works, and the defendant appeared to understand. During the visit a witness attended. Mr Nicotra had drafted a new Will incorporating the defendant’s changes which were read to the defendant. Mr Nicotra was satisfied that the defendant understood it. The Will was executed. Again, the defendant wrote his name on each page of the Will.
On 23 November 2012 Mr Nicotra signed a police statement. Sometime later he was contacted by the defendant’s solicitor. Mr Nicotra spoke to the solicitor for about an hour. The solicitor made inquiries of Mr Nicotra as to what he had said in his statement.
On 4 April 2013 Mr Nicotra met again with the defendant in gaol at the defendant’s request.
Mr Nicotra described his relationship with the defendant prior to this meeting as “extremely healthy.” On this occasion the defendant did not wish to see Mr Nicotra. The defendant spoke to Mr Nicotra in a completely different manner to how he had in previous meetings. Mr Nicotra described the comparison between this meeting and previous meetings as “like night and day.” The defendant was untrusting, apprehensive and very, very guarded. His body language suggested that he did not want to go ahead with making a new Will. Mr Nicotra asked the defendant why he did not want to make a new Will. The defendant said he had seen his trial solicitor who told him that his previous wills had not helped him with the murder charge. The defendant said the Public Trustee should have dealt with him differently so he would have fared better with the murder charge.
The defendant then indicated that he wanted to go ahead with making a new Will. The defendant stated that he did not understand what Mr Nicotra was saying. The number of times that this was repeated to Mr Nicotra caused him concern. Despite the defendant saying this, Mr Nicotra found the defendant’s answers to questions to be quite good.
As with previous occasions, Mr Nicotra asked the defendant questions for the purpose of filling in a Will Instruction Form. The defendant indicated that he had disposed of his vehicle and as a result wanted a sum of money left to his brother. The balance of the estate was to go to his son at age 18. The defendant wanted to be cremated. He wanted his ashes given to the defendant’s brother or Ms Glover, until the defendant’s son reaches the age of 18 at which point the ashes were to be given to him. The defendant had previously named his children as beneficiaries, but now named only his son. The reason for this was that the defendant was now in gaol and not expecting to have more children in the foreseeable future.
Mr Nicotra did not see the defendant after 4 April 2013. Mr Nicotra concluded the defendant’s presentation on that day was strange. No draft Will was prepared.
Mr Nicotra gave careful and considered evidence. He had seen the defendant on a number of occasions. The defendant demonstrated an ability to understand and comprehend his situation. He made decisions about his Will and to whom he desired to leave his assets. It is significant that the defendant changed his attitude and approach to Mr Nicotra after he had spoken to his solicitor who was advising him in respect of the charge he now faces. I consider the defendant has a greater understanding of circumstances and events in his life than he indicated to Mr Balfour, Mr Reid and Dr Scamps.
Addendum
Following the evidence given by Mr Mercer, Mr Kora and Mr Nicotra, Mr Reid was asked to provide a further opinion based on the evidence which they had given. He provided a subsequent report dated 20 June 2013. The evidence did not change Mr Reid’s views regarding the defendant’s lack of fitness to stand trial. He stated that any assessment of competence must meet the “test” provided for in s 269H of the Criminal Law Consolidation Act 1935 (SA). His opinion was that the prosecution’s attempt to demonstrate the defendant’s cognitive competence through the various witnesses did not meet the standard for fitness to stand trial as expressed in the Act. He stated that the evidence extracted from the witnesses were subjective assessments of quite different tests of competence. His opinion was that the evidence did not indicate that the defendant can follow, remember and use a lot of information in a rational manner.
Legal principles
The principles surrounding the determination of a person’s fitness to stand trial were discussed in R v Presser.[2] Smith J discussed the need for a practical and commonsense approach to be taken. He said: [3]
[The accused needs] 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 the 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.
[2] [1958] VR 45.
[3] R v Presser [1958] VR 45, 48.
The observations in Presser were approved by the High Court in Ngatayi v The Queen.[4] In that case, the majority (Gibbs, Mason and Wilson JJ) discussed the nature of the test provided for in a section equivalent to s 269H: They stated:[5]
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.
[4] (1980) 147 CLR 1.
[5] Ngatayi v The Queen (1980) 147 CLR 1, [9].
In Kesavarajah v R the majority of the High Court observed:[6]
In R v Presser, Smith J elaborated the minimum standards with which an accused must comply before he or she can be tried without unfairness or injustice… Those standards, which are based on the well-known explanation given by Alderson B to the jury in R v Pritchard… require the ability (1) to understand the nature of the charge; (2) to plead to the charge and to exercise his 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.
[Citations omitted.]
[6] Kesavarajah v R (1994) 181 CLR 230, 245.
In R v Stevens,[7] Sulan J, with whom Nyland and Layton JJ agreed, confirmed the approach of Smith J in Presser. In Stevens, two psychologists had given evidence that the defendant was unfit to stand trial. The trial Judge, in determining the question of fitness, considered not only the evidence of the psychologists, but also other material such as a video tape of the appellant when he was arrested and subsequently interviewed by the police. She also noted that there was no evidence from persons who may have observed the appellant over a period of time, and there was no evidence from any persons who had advised the appellant in the past. She concluded that, contrary to the views expressed by the psychologists, she was of the view that responses given by the appellant in the police and psychological interview processes demonstrated a sufficient level of understanding, such that she was not satisfied that he was unable to understand or respond rationally to the various criteria set out in s 269H.
[7] (2010) 107 SASR 456.
The approach of the Judge was upheld. It was submitted that the Judge should not have substituted her own assessment of the appellant, based on two video interviews, in lieu of the assessment of the two experts of that same video material.
The Court of Criminal Appeal confirmed that the Judge was correct in regarding herself as being in a position to assess the appellant’s general capacity to understand and answer questions. It confirmed that the opinions of experts are but one factor which the Court must evaluate. Factors such as the conduct of the person when first approached by the police, the conduct of the person during any interview by the police, and other non-expert evidence is relevant to the consideration of a person’s fitness to stand trial.
Conclusion
I have had regard to the evidence of all the non-expert and expert witnesses and all relevant reports. It is not in contention that the defendant is unfit to stand trial under section 269H(a). Although counsel for the defendant does not concede that the defendant is not unfit under s 269H(b), the primary contention is that the defendant is unfit under s 269H(c).
It is not in dispute that the defendant has brain damage as a result of the accident which occurred in his childhood. He is of low intelligence. He is illiterate and has trouble with numbers. I accept that he has more difficulty processing information, and especially complex information, than the average person. The evidence of Ms Mildwaters was that he could be vague at times, and would stare off into space. These were general observations. I accept the evidence of Mr Kora and Mr Nicotra which demonstrates that the defendant can maintain focus when he knows this is important.

Mr Balfour said that, having considered the transcripts of the defendant’s phone calls from gaol, it appeared the defendant had understated his knowledge of his legal rights in interview. Mr Reid said that the defendant was probably under-reporting to him. Mr Reid would have conducted further testing to determine the cause of this had he become aware of the under-reporting during the interview. Dr Raeside’s first report indicated the defendant has a very limited knowledge of legal processes. His second report, in response to the telephone transcripts, describes a slightly greater understanding. The prosecution witness Mr Nicotra gave evidence that the defendant generally presented well, although there was a stark change in his presentation in interview on 4 April 2013. Dr Scamps interviewed the defendant 30 May 2013. The inconsistency between what the defendant told her in interview and how he presented to other witnesses caused her to change her opinion. In her report, Dr Scamps noted difficulties in the defendant’s memory, comprehension and ability to provide multiple responses to problems. On reading the non-expert witnesses’ evidence, she concluded there were “significant concerns over the tests results” she had obtained. In her interview the defendant had been unable to write his name. There are many examples in the evidence of the defendant being capable of doing this. I am satisfied that the defendant exaggerated his deficiencies when interviewed by all the psychologists. My observation of the defendant after his arrest and when spoken to by police is that the defendant has an understanding of the legal process, and his legal rights upon arrest.
Section 269H(b)
Mr Balfour’s reports and his evidence in Court was that the defendant was not unfit to stand trial pursuant to section s 269H(b).
Mr Reid’s opinion was that the defendant did not have the ability to provide instructions or understand his procedural rights, even if these were explained to him. He could not store information and use it effectively to instruct his solicitors. He would not be assisted by prompts and reminders from his lawyers. However, Mr Reid accepted that the more salient the information was to the defendant, the more likely the defendant would be to store and recall the information.
Dr Scamps accepted that the defendant could understand and exercise his procedural rights if they were explained to him by his lawyer. Her final conclusion was that the defendant was not unfit to stand trial under s 269H(b).
Dr Raeside’s view was that the defendant would be unable to provide adequate instructions. I note that his underlying assessment was heavily reliant on the evidence of the psychologists. He was not provided with the evidence of the non-expert witnesses.
Each of the experts referred to spent no longer than a few hours with the defendant. Their evidence must be assessed against my conclusion that the defendant was exaggerating his impairments and under-performing during the assessments. In contrast, in the defendant’s interactions with non-expert witnesses he exhibited an understanding and memory of events beyond that which he conveyed to experts. Mr Kora said that when the defendant wants something and has a point to get across, he can make multi-faceted and logical arguments. Mr Nicotra said that the defendant can understand more complex ideas when they are explained to him. The defendant can adequately instruct a person to draft a Will. Both of these witnesses, and Mr Mercer, Dr Schultz and Dr Noakes, indicated that the defendant has no problems with his memory. I accept their evidence as accurate.
When questioned by police for previous offences, and indeed for the current charge, the defendant has demonstrated knowledge of his legal rights. He has demonstrated an ability to exercise his rights in varying ways. The telephone transcripts are consistent with this.
Section 269H(c)
Mr Balfour’s reports and his evidence in Court initially was that the defendant is unfit to stand trial, pursuant to s 269H(c). However, upon considering the transports of the two previously unheard telephone calls, Mr Balfour accepted that the defendant had sufficient understanding of legal concepts to be able to follow the course of evidence.
Mr Reid’s evidence was that the defendant would not have the capacity to understand the nature of the proceedings or follow the evidence. He would become confused with the language used and overloaded with information. His concentration span and ability to retain information is such that he could not remember proceedings.
Having read the non-expert witnesses’ evidence, Dr Scamps concluded that the defendant was not unfit under s 269H(c). Dr Raeside maintained that the defendant would not be able to follow legal proceedings.
The evidence of Mr Mercer, Mr Kora and Mr Nicotra indicates that the defendant is capable of concentrating and understanding even complex matters if they are explained to him clearly. The evidence of Mr Kora particularly shows that the defendant can formulate a multi faceted answer to problems. Dr Schultz and Dr Noakes both found the defendant presented well. Many witnesses observed the defendant has no difficulties with his memory. Again, the defendant’s responses to police in relation to previous charges and the subject charge, together with the telephone transcripts, indicate the defendant has knowledge of legal proceedings.
I observe that no evidence was called by the defendant from persons with whom he had regular contact over the years. No evidence was called from legal practitioners with whom he had contact as to his cognitive impairment. No evidence was called from members of his family or friends who had regular contact with him.
I accept that the defendant’s brain injury and his cognitive ability requires that there be frequent adjournments during the trial to enable his legal advisers to advise him and explain the progress of the proceedings.
I note that by the end of the investigation, two of the three expert psychologists held the opinion that the defendant was not unfit to stand trial. The evidence satisfies me that the defendant, when examined by the psychologists, was exaggerating his impairment and exaggerating his inability to understand the nature of the proceedings. As I have indicated, I accept the evidence of the witnesses who had contact with the defendant over a number of years. Although he is cognitively impaired, the defendant is able to manage his life. I am satisfied that he is able to recall events. I accept that, in order for him to be able to instruct his legal advisers, and in order for them to obtain instructions from him, it will be necessary for there to be more than the usual number of adjournments during the course of a sitting day.
The evidence does not satisfy me, on the balance of probabilities, that the defendant is unfit to stand trial. The evidence does not support a conclusion that the defendant is unable to understand the nature of the proceedings, or that he is unable to follow the evidence of the course of the proceedings. Further, the evidence does not establish to my satisfaction, on the balance of probabilities, that the defendant is unable to give rational instructions about the exercise of his procedural rights, nor is he unable to understand or respond rationally to the charge or the allegations upon which the charge is based.
I conclude that the evidence does not establish that he is mentally unfit to stand trial.