R v Miers - [2023] SADC 23

District Court of South Australia
(Criminal)
R v MIERS
Criminal Trial by Judge Alone
[2023] SADC 23
Reasons for Decision of his Honour Judge Handshin
9 March 2023
CRIMINAL LAW - PROCEDURE - FITNESS TO PLEAD OR BE TRIED
The defendant, who is charged with aggravated serious criminal trespass, theft and deception, suffers from Foetal Alcohol Spectrum Disorder. On the basis of a number of expert reports, an investigation into the defendant’s fitness to stand trial was conducted. A psychiatrist and a psychologist gave evidence that the defendant was unfit to stand trial on the basis of ss 269H(b) and (c) of the Criminal Law Consolidation Act 1935, on account of the cognitive deficits associated with her condition. No contradictory expert evidence was adduced by the prosecution.
Held: The defendant is unfit to stand trial pursuant to ss 269H(b) and (c).
Criminal Law Consolidation Act 1935 (SA) ss 134(1), 139(a), 170(1), 269B, 269H, 269I, 269J, 269K, 269L and 269M, referred to.
R v Presser [1958] VR 45; R v Hayles [2018] SASCFC 58; Ngatayi v The Queen (1980) 147 CLR 1; R v W, R [2019] SASCFC 33; R v Taylor [2014] SASCFC 112, applied.

R v MIERS
[2023] SADC 23
Criminal Jurisdiction

The defendant, Lola Miers, has Foetal Alcohol Spectrum Disorder as a result of which she suffers from various cognitive impairments that affect her memory, processing capacity, executive functioning and behavioural regulation. Her receptive communication skills are equivalent to those of a three and a half year old child. Her expressive communication skills are equivalent to those of a child aged 11 years and nine months old.
Expert reports provided by forensic consultant psychiatrist, Dr Megan Ferris, and clinical psychologist, Ms Susan Heinrich, suggest Ms Miers is unfit to stand trial. Accordingly, pursuant to s 269J of the Criminal Law Consolidation Act 1935 (SA) (CLCA), I ordered that there be an investigation into this issue and that the question of Ms Miers’ fitness to stand trial be determined before and separately to any other issue. Through her counsel, Mr Lang, an election was made for the investigation to be conducted before a judge sitting without a jury.[1]
[1] Criminal Law Consolidation Act 1935 (SA), s 269B; T3.
On 15 and 17 February 2023, I heard evidence and representations as to Ms Miers’ fitness to stand trial. Mr Lang called Dr Ferris and Ms Heinrich. Their reports were tendered by consent[2] and both were examined and cross examined.
[2] Exhibit D1, Tabs 1, 2 and 3; T7, 97-98.
Additional medical and neuropsychological reports were tendered by consent[3] and on the basis that I could act on those reports as if the authors had been called to give oral evidence.[4]
[3] Exhibit D1, Tabs 4-9.
[4] T97-98.
The prosecution did not call any witnesses, but tendered a bundle of affidavits and other documents setting out the allegations against Ms Miers.[5] As will be seen, these materials are relevant to certain assumptions made by Dr Ferris and Ms Heinrich about the relative simplicity of the case to be made against Ms Miers and her capacity to understand, follow and participate in the proceedings.
[5] Exhibit P2.
The central, but not exclusive, basis on which Ms Miers contends she is unfit to stand trial is s 269H(c). There was consensus amongst Dr Ferris and Ms Heinrich that Ms Miers is probably capable of understanding the nature of and rationally responding to the charges brought against her such that s 269H(a) is not engaged. However, both Dr Ferris and Ms Heinrich are firmly of the view that Ms Miers is unfit on account of ss 269H(b) and 269H(c).
There was no real dispute between the parties as to the applicable principles. The forensic contest with respect to both ss 269H(b) and (c) focused on whether the evidence establishes that Ms Miers is entirely unable to exercise her procedural rights (or give rational instructions as to their exercise) and/or entirely unable to understand and follow the proceedings and the evidence. It was the prosecution’s primary contention that whilst Ms Miers’ capacity to engage in the proceedings is obviously impaired, the evidence falls short of establishing the inability or incapacity required by s 269H. It was submitted that Dr Ferris and Ms Heinrich misapplied the applicable test in reaching their conclusions.
Having reviewed the evidence and considered the submissions of the parties, I find, on the balance of probabilities, that Ms Miers is unfit to stand trial pursuant to ss 269H(b) and (c) of the CLCA. My reasons follow.
The charges and the prosecution case
Ms Miers is charged on Information with one count of aggravated serious criminal trespass in a place of residence (ASCT), contrary to s 170(1) of the CLCA; one count of aggravated theft (theft), contrary to s 134(1) of the CLCA; and two counts of deception, contrary to s 139(a) of the CLCA.
The offending is alleged to have occurred on 18 August 2020, when a woman said to be Ms Miers entered the residence of GG in an aged care facility at Everard Park. It is the prosecution case that the woman entered GG’s unit via the unlocked front door and asked for a glass of water (count 1). The woman began to approach the chair in which GG was seated but before reaching her, turned and left the unit. Around 30 minutes later, GG realised that her purse was missing from her handbag (count 2).
The prosecution case is that the defendant stole GG’s purse and thereafter caught a tram to Glenelg. She attended at TSG Tobacco on Jetty Road, Glenelg where she attempted to purchase a carton of cigarettes using GG’s bank card. As the combined price of the cigarettes exceeded $100, the point of sale device required a pin number to be entered to complete the transaction.
The defendant told the shop assistant that she could not remember her pin number and asked if she could do ‘half payments at a time’. She was advised that she would still be required to enter a pin and, in response, requested two packets of a particular brand of cigarette. As the packets were valued at $53.98 each, the defendant was able to use the bank card without entering a pin number.
Having successfully purchased two packets of cigarettes, the defendant asked to purchase two further packets of a different brand of cigarette. As the value of the cigarettes was less than $100, the defendant was again able to use the bank card without entering a pin number.
Ms Miers’ reaction to the successful purchases was noted to be suspicious by the shop assistant. When she endeavoured to purchase another packet of cigarettes, she was asked to produce the bank card and identification. She declined to do so and became irritated, yelling at the shop assistant ‘I shouldn’t come here, it’s bad service!’ before leaving the store.
The total value of the cigarettes Ms Miers allegedly acquired using GG’s bank card was $206.58 (count 3).
It is alleged that later that same evening, Ms Miers was recorded on closed circuit television cameras at Coles Supermarket, Glenelg, purchasing two more packets of cigarettes, valued at $72.40, again using GG’s bank card (count 4).
On 29 August 2020, police attended at Ms Miers’ address. Upon police entering the property, and advising Ms Miers they were looking for certain articles of clothing, Ms Miers retrieved a black hooded jacket from her bedroom matching a description provided to police by GG and which could be seen on CCTV footage depicting Ms Miers on 18 August 2020. Ms Miers volunteered ‘this is the top’. She was cautioned by a police officer but responded that she did not understand the caution.
It can be seen from this summary of the evidence, that the prosecution case against the defendant is factually at least quite straightforward. However, the charges of ASCT and deception are somewhat legally nuanced and definitionally intricate.
Before addressing the detail of the expert evidence, it is helpful to revisit the principles and provisions relevant to assessing Ms Miers’ fitness to stand trial.
Legal principles
The framework within which fitness to stand trial is determined is provided by Division 3 of Part 8A of the CLCA. The procedure to be followed is set out in ss 269J-M. Section 269I establishes a presumption of fitness. Ms Miers carries the persuasive burden of displacing the presumption on the balance of probabilities. It is not sufficient if the evidence merely raises a doubt about her fitness. Ms Miers will be presumed fit to stand trial unless and until I am satisfied on the balance of probabilities that she is unfit within the meaning of s 269H of the CLCA.
Section 269H of the CLCA is in the following terms:
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.
Self evidently, each limb of s 269H can operate disjunctively.
The statutory test of fitness to stand trial provided by s 269H is derived from the common law principles summarised by Smith J in R v Presser [1958] VR 45 at 48:
[The accused] needs, I think to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceedings, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; he needs to be able to make his defence or answers to the charge. Where he has counsel he needs to be able to do this through 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 the 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…
It can be seen from the above passage that to be fit to stand trial, a defendant must understand what he or she is charged with; have a general understanding of the nature of the proceedings; be able to follow the course of the proceedings generally and understand the substantial effect or gist of the evidence. This does not require the capacity to store and retrieve the detail of evidence led for or against the defendant. The capacity to comprehend and process the substantial effect, or gist, of the evidence as it is given is sufficient.[6]
[6] R v Hayles [2018] SASCFC 58, [34].
A defendant must be capable of providing instructions and detailing his or her version of events, so that counsel can conduct the defence case. He or she must have the capacity, with the assistance and guidance of counsel, to decide what defence (which in some cases may of course comprise a mere denial of the prosecution case or putting the prosecution to proof) is to be relied upon. That is not to say a defendant must be independently aware of the available defences or understand their legal elements. It is necessary only that a defendant be capable of instructing counsel to pursue a response to the prosecution case about which he or she has been educated. He or she must also be able to make an informed decision, again with the assistance and guidance of counsel, about how to exercise procedural rights. This necessarily requires an ability to understand, albeit at a very basic level, what rights may be exercised and the implication of exercising, or not exercising, those rights. The requirement that a defendant possess or be capable of acquiring some understanding of those matters, even if basic, is common to the indices of fitness. A defendant who lacks the capacity to comprehend what his or her rights are and to reason, even at a basic level, as to how he or she wishes to exercise those rights, is unfit.
These matters are of course to be assessed in a case specific way, having regard to the nature of the charges and the anticipated evidence.
Contrastingly, a defendant need not have an appreciation or familiarity with court procedures. He or she need not understand why counsel are making certain tactical or forensic decisions,[7] such as whether to pursue a particular line of questioning during a cross examination; or which documents or items of real evidence ought to be tendered. There is no requirement that a defendant understand the rationale for the procedural rights they have or the court procedures they will participate in. Nor is it necessary that a defendant be capable of following and understanding legal arguments – that is the domain of counsel. [8] The possibility that a defendant who elects to give evidence might give unreliable evidence or lack the guile to give self-protective evidence is not an indicator of unfitness: the capacity to give good evidence is not a pre-requisite to fitness to stand trial. The relevant inquiry is whether the defendant is capable of exercising the choice to give evidence, understand the requirements of the oath and to give his or her version of events in response to questions.[9]
[7]     R v Hayles [2018] SASCFC 58, [39].
[8]     Ngatayi v The Queen (1980) 147 CLR 1, 9.
[9]     R v W, R [2019] SASCFC 33, [32]-[33], [63].
In R v Hayles [2018] SASCFC 58 at [31], Stanley J collected and summarised the applicable principles:
(i)the overarching concern of the common law and s 269H is to prescribe the minimum requirements for a fair trial where there is an issue as to whether the accused is unfit to stand trial by reason of some mental impairment. The purpose of s 269H is to ensure that a trial is not rendered unfair because of the inability of the accused to participate in the trial in an appropriate manner;
(ii) the test is to be applied in a reasonable and commonsense fashion;
(iii)the minimum requirements required for an accused person to be fit to stand trial may not be very difficult to meet;
(iv)in order to be fit to stand trial, an accused must be able to follow the course of the proceedings and the evidence so as to understand what is going on in a general sense, but it is not necessary that he has a complete understanding or that he is capable of following the complexities of legal argument or some difficult to understand aspect of the evidence;
(v)the fact that an accused suffers from a mental disorder or impairment which reduces his capacity to follow the evidence or the course of the proceedings does not render him unfit to stand trial. The test of unfitness requires that the accused is entirely unable to follow the evidence or the course of the proceedings;
(vi)in assessing whether an accused is unfit to stand trial, it is proper for the court to weigh the complexity of the charge faced by the accused and whether the accused is represented by counsel; and
(vii)whether the accused is unfit to stand trial, where his ability to receive information, process it and respond to it is impaired, depends on whether that impairment is such as to deprive the accused of the capacity to follow the evidence or the course of the proceedings in the manner described above.
(emphasis added)
It is important to reiterate, as Stanley J did at points (i) and (ii), that the objective of the common law principles concerning fitness and their statutory analogues such as s 269H, is to enshrine the minimum requirements necessary to preserve the fairness of a defendant’s trial. The application of the test must be approached in a reasonable and common sense manner, mindful of the objectives of the provision.
Given it was an important feature of the prosecution’s arguments, it is necessary to say something as to point (v) above. The distinction there being drawn by Stanley J was between the defendant who has a reduced or imperfect capacity to engage in the proceedings on the one hand and, on the other, the defendant who cannot functionally participate in the proceedings owing to their impairment. The text of s 269H supplies the organising principles: a defendant must be ‘unable’ to do the things specified by placita (a)-(c).[10] A mere reduction in capacity, even if substantial, does not suffice; the inability to acquire a complete or even comprehensive understanding of the proceedings or the evidence does not correspond with a lack of fitness.
[10] See also R v W, R [2019] SASCFC 33, [44], [83].
Foetal Alcohol Spectrum Disorder
There is no dispute that Ms Miers suffers from Foetal Alcohol Spectrum Disorder (FASD) or, as it is now defined in the DSM-5, Neurodevelopmental Disorder associated with Prenatal Alcohol Exposure.[11] FASD, as the condition implies, is a disorder contracted when an unborn child is exposed to alcohol in-utero. The disorder occasions cognitive deficits and impairs executive functioning, reasoning, memory, receptive and expressive communication capacities, behavioural regulation and impulsivity control.[12]
[11] I will refer to the disorder using the acronym FASD.
[12] T9-10.
It appears that Ms Miers was first diagnosed with the disorder by Dr Chudley, a paediatrician in Canada, at which time she was in Year 10 at St Mary’s College. The diagnosis has since been verified by Professor Elizabeth Elliott.
Dr Ferris described FASD as a ‘lifelong disability, so it’s never going to be in remission, it’s never not going to be there…’.[13]
[13] T15, 32.
Since receiving her diagnosis, Ms Miers has undergone further testing by occupational and speech therapists and a neuropsychologist. Testing has revealed Ms Miers to have impaired executive functioning with difficulties with memory, attention span, problem solving skills and to be of generally low intelligence.[14] Her receptive communication skills have been assessed as equivalent to those of a three and a half year old child. However, Ms Miers has comparatively strong expressive language abilities which, according to Ms Heinrich, allow her to mask her disability to some extent by conveying the appearance of comprehension.[15]
[14] Exhibit D1, Report of Ms Heinrich, 3 March 2022, p 5.
[15] Exhibit D1, Report of Ms Heinrich, 3 March 2022, p 6. See also Exhibit D1, Tab 6.
Whilst neither Dr Ferris nor Ms Heinrich themselves made a formal diagnosis of FASD, the prosecution accept that Ms Miers has FASD and both witnesses observed physiological and cognitive impairments consistent with and supportive of the diagnosis.
Accordingly, I proceed on the basis that Ms Miers suffers from FASD.
Dr Ferris was also of the view that Ms Miers satisfied the diagnostic criteria for Alcohol Abuse Dependence Syndrome, given her limited periods of abstinence from alcohol over the past 25 years.[16]
[16] Exhibit D1, Report of Dr Ferris, 15 July 2022, [12.2].
Background, education and vocational history
Ms Miers is a 42 year old woman of Aboriginal descent. Her early childhood appears to have been difficult[17] and, as a consequence, she was placed in the care of her adoptive mother aged just 21 months. Ms Miers’ biological mother passed away when she was 10 years old. She has eight siblings with whom she has had little contact over the years.
[17] Exhibit D1, Report of Dr Ferris, 15 July 2022, [7.1].

It appears that Ms Miers completed her primary school education with learning support but struggled in high school. She found school challenging and attended special education classes. She had difficulty passing subjects and stopped attending school before completing Year 10.[18]
[18] Exhibit D1, Report of Susan Heinrich, 3 March 2022, p 4.
Since the age of 17, Ms Miers has struggled with alcohol abuse. She has engaged in alcohol abuse rehabilitation programs on four occasions but has thus far been unable to find a longer term solution to her alcohol abuse problems.[19]
[19] Exhibit D1, Report of Dr Ferris, 15 July 2022, [3.4].
Despite her challenges, Ms Miers has had a number of jobs. She has worked in a conference centre at Balyana and in food preparation at Bedford. She has participated in a horticulture course, a Green Corps voluntary program and has done work through Minda. The work undertaken by Ms Miers in the above roles and the way she managed her employment duties was not the subject of detailed evidence. Ms Heinrich records that Ms Miers was ‘adequate at her job’ when working with Minda.[20]
[20] Exhibit D1, Report of Susan Heinrich, 3 March 2022, p 4. See also Exhibit D1, Tab 6.
Ms Miers has a 13 year old daughter who is cared for by Ms Miers’ adoptive parents.
As at the date of the reports of Dr Ferris and Ms Heinrich, Ms Miers was in a relationship and was living in accommodation provided by her adoptive parents. She had previously been residing in supported housing with access to a support worker 5 to 6 days a week from 10am to 5pm.[21] She receives support from the NDIS and is subject to a guardianship and administration order, although the details of the order and the circumstances in which it was made are again not the subject of detailed evidence,[22] save that Ms Heinrich reported: ‘I note she is under a Guardianship Order with a publicly appointed Guardian and is under the Public Trustee, such that the South Australian Administrative Appeals Tribunal [sic] has deemed her unable to make decisions about her accommodation, health and lifestyle.’[23]
[21] Exhibit D1, Report of Susan Heinrich, 3 March 2022, p 3; T23.
[22] T23.
[23] Exhibit D1, Report of Susan Heinrich, 22 April 2022, p 3. See also Exhibit D1, Tab 6.
Forensic assessments
Ms Miers was forensically assessed by Ms Heinrich and Dr Ferris. Both produced written reports and, as I have said, gave oral evidence on the investigation into Ms Miers’ fitness. There was no challenge to their qualifications and expertise; nor was there any challenge to the facts or assumptions upon which their opinions were based.
Ms Heinrich met with Ms Miers on 11 January 2022. She administered various psychometric tests, the results of which indicted ‘significant executive functioning deficits’ and ‘frontal lobe dysfunction’.[24]
[24] Exhibit D1, Report of Susan Heinrich, 3 March 2022, p 7.
Dr Ferris assessed Ms Miers in May 2022 over a period of an hour.[25]
[25] T15.
Both Ms Heinrich and Dr Ferris[26] also had regard to the medical and neuropsychological reports prepared by other practitioners in expressing their opinions as to Ms Miers’ fitness to stand trial, which form part of Exhibit D1.
[26] T12-13 – Dr Ferris received the additional materials in the week prior to giving evidence.
Ms Heinrich’s approach to fitness
I will address first the substance of Ms Heinrich’s written reports before turning to her oral evidence, given, as is to be expected, much of the examination and cross examination of Ms Heinrich built upon her written reports.
Report of 3 March 2022
As noted, Ms Heinrich assessed Ms Miers on 11 January 2022. Ms Miers said, at that time, that she had no recollection of the alleged offences and had been drinking significantly.[27]
[27] Exhibit D1, Report of Susan Heinrich, 3 March 2022, p 7.
In her first report of 3 March 2022, Ms Heinrich recorded that she asked Ms Miers a series of questions, designed to elicit her understanding of the charges, the nature of court proceedings; her procedural rights and the roles and responsibilities of various participants in those proceedings.
By way of summary, Ms Heinrich wrote:
·Ms Miers did not understand what it meant to have a ‘right to remain silent’.[28]
·She understood that there would be someone in charge of the court room and, with prompting, recognised the terms ‘Judge’ and ‘Magistrate’. She described the role of the judge as ‘they sit and they talk about stuff’…‘to make sure you get it all right’. She apparently understood that the purpose of court convening was ‘because you’re in trouble’. Ms Miers said that the judge would reach a decision by ‘looking at paperwork’ about ‘stuff you did wrong’.[29]
·Ms Miers described her lawyer as a ‘lovely lady’ who wore ‘funny clothes and a funny hat’ and whose role was to ‘help her tell the Judge what happened to help her “not get into trouble as much”’. Ms Miers told Ms Heinrich that she does not understand what her lawyer says or the court proceedings but would follow her lawyer’s instructions.[30]
·Ms Miers did not understand what it meant to plead guilty or not guilty, commenting ‘I don’t understand it all, it’s so complicated’.[31] When asked directly what ‘not guilty’ means, Ms Miers responded with a question: ‘does it mean not in trouble?’ Ms Heinrich recorded that Ms Miers demonstrated minimal understanding of the implications of being found guilty of a criminal offence.[32]
·Ms Miers understood the difference between the truth and a lie and appreciated, with prompting, that taking an oath required ‘[telling] the truth on the Bible’ – a matter she had discerned from television programmes.[33]
[28] Exhibit D1, Report of Susan Heinrich, 3 March 2022, p 8.
[29] Exhibit D1, Report of Susan Heinrich, 3 March 2022, p 9.
[30] Exhibit D1, Report of Susan Heinrich, 3 March 2022, p 9.
[31] Exhibit D1, Report of Susan Heinrich, 3 March 2022, p 9.
[32] Exhibit D1, Report of Susan Heinrich, 3 March 2022, p 9.
[33] Exhibit D1, Report of Susan Heinrich, 3 March 2022, p 9.
Turning to the criteria in s 269H of the CLCA, Ms Heinrich wrote:
·Ms Miers is capable of understanding and responding to the nature of the charges and the allegations on which they are based, having regard to the relative simplicity of the underlying facts (s 269H(a)).
·Ms Miers is not capable of exercising or giving rational instructions about the exercise of her procedural rights given her low level of cognitive functioning (s 269H(b)).
·Ms Miers does not have the capacity to understand and follow the proceedings. Ms Heinrich described Ms Miers as a ‘naïve legal participant, displaying minimal understanding of the Court process’, whose ‘level of cognitive functioning would make it impossible for her to sufficiently learn and understand what is occurring in Court to attain even the most basic understanding of proceedings (s 269H(c)).’[34] Ms Heinrich concluded:
Her significant cognitive deficits, especially in regard to her concentration mean she cannot reliably maintain attention to key issues at hand, which is common among persons with FASD. The absence of this ability will render her unable to follow proceedings, even as individual facets. Her degree of impairment renders her incapable of following proceedings or the course of evidence.[35]
[34] Exhibit D1, Report of Susan Heinrich, 3 March 2022, p 11.
[35] Exhibit D1, Report of Susan Heinrich, 3 March 2022, p 11.
Accordingly, Ms Heinrich was of the view that Ms Miers is unfit to stand trial on account of both s 269H(b) and (c).
Report of 22 April 2022
At the request of the Court, Ms Heinrich provided a supplementary report dated 22 April 2022 to elaborate on aspects of her opinion and articulate her understanding of the test of fitness to stand trial.
With respect to the test prescribed by s 269H, Ms Heinrich explained:
For a defendant to be fit to stand trial, it is my understanding that they must be able to understand the law and proceedings well enough to allow them to understand the accusations made against them and the defence that is being put forward on their behalf. They must be able to understand and retain what is occurring for long enough and to a sufficient degree to make their views known and be able to engage in a meaningful discussion about their case so they can be fairly represented.[36]
[36] Exhibit D1, Report of Susan Heinrich, 22 April 2022, p 2.
By reference to the statement of Smith J in R v Presser set out earlier in these reasons, Ms Heinrich acknowledged that it is not necessary for a defendant to have a complete understanding of the nature and course of the proceedings to be fit to stand trial. She correctly recorded that it is sufficient if a defendant understands the general nature and course of the proceedings and has the capacity to follow and appreciate the substantial effect of the evidence.
Returning to Ms Miers’ understanding of the nature of the proceedings, Ms Heinrich observed:
·Ms Miers had a very basic understanding of the role of her lawyer and the judge. She had a rudimentary appreciation that her lawyer’s role involved advocating for her but was unable to tell Ms Heinrich anything substantive that her lawyer had told her or to explain her case further. Ms Miers told Ms Heinrich that she did not understand any explanation provided by her lawyer.[37] The role of the judge was, she said, to ‘make sure you get it all right’ and that the judge would consider ‘paperwork’, which Ms Miers understood to contain information about ‘the stuff [someone] did wrong’, and ‘behaviour’ in making a decision. Ms Miers was unable to elaborate any further. Ms Miers wrongly thought that her lawyer argued against the ‘judge’.[38]
·Despite experiencing difficulty with the terminology, Ms Miers was able to identify a difference between guilt and innocence at least to some degree and understood the need to tell the truth in court. However, Ms Miers’ understanding of these concepts was apparently linked to outcome. It is not apparent that Ms Miers understands the nature and effect of a plea of guilty or not guilty. Ms Heinrich considered that care would be required in communicating with Ms Miers about these concepts.[39]
[37] Exhibit D1, Report of Susan Heinrich, 22 April 2022, p 2.
[38] Exhibit D1, Report of Susan Heinrich, 22 April 2022, p 2.
[39] Exhibit D1, Report of Susan Heinrich, 22 April 2022, p 3.
Ms Heinrich reiterated that neuropsychological testing has shown Ms Miers to have significant impairment in executive functioning, problem solving, judgment, decision making and deductive reasoning. Ms Heinrich further noted deficits in Ms Miers’ ability to organise information and use it to reason.[40]
[40] Exhibit D1, Report of Susan Heinrich, 22 April 2022, p 4.
Ms Heinrich addressed the six fitness ‘indices’ enumerated in Presser, and made the following remarks:
·Ms Miers is capable of understanding the charges and the nature of the allegations against her, if that information is presented in simple terms. She is capable of stating whether she did or did not commit the offences charged, but care would be needed to avoid confusion (s 269H(a)).
·Ms Miers would not be able to exercise her right to challenge jurors or other procedural rights, such as electing for a trial by judge alone, as she would be unable to understand the rationale behind such rights or reason as to how such rights should, if at all, be exercised. Ms Heinrich observed that whilst Ms Miers might be able to understand ‘what each option entails at a literal level, her cognitive deficits are such that she would be unable to reason the risks or benefits of one option over another and would be reliant solely on the advice of her lawyer, being incapable of reasoning this for herself even in simple terms’.[41] However, Ms Heinrich considered that if fitness required only that Ms Miers be capable of following the advice of her counsel with a very basic and literal understanding of her procedural rights, she would be fit to stand trial (s 269H(b)).
·Based on her level of functioning, concentration capability and attention span, Ms Miers would be able to understand ‘almost nothing said in Court’.[42] Ms Heinrich acknowledged that Ms Miers’ understanding might be improved with explanations from counsel and her mother ‘in simple terms’. However, she added that if understanding generally the nature of the proceedings contemplates ‘a level of comprehension, ability to apply meaning or to be able to grasp [the] significance, implications or the importance of something, Ms Miers is largely lacking the capacity to do so’.[43] Even with detailed explanations, Ms Miers’ ‘ability to understand the nature of proceedings would be limited to the fact the Judge will make a decision about punishment and that her lawyer is to make sure the punishment is fair…’.[44]
·Ms Miers would be unable to understand the course of proceedings without detailed explanations being provided in simple terms.[45]
·Given the simplicity of the anticipated evidence, Ms Miers would be able to understand the substantial effect of the evidence and provide basic instructions.[46]
·Ms Miers is able to share her account of events in basic terms, but her cognitive deficits would make it difficult for her to identify relevant information and communicate her position on potentially contested facts.[47]
[41] Exhibit D1, Report of Susan Heinrich, 22 April 2022, p 4.
[42] Exhibit D1, Report of Susan Heinrich, 22 April 2022, p 5.
[43] Exhibit D1, Report of Susan Heinrich, 22 April 2022, p 5.
[44] Exhibit D1, Report of Susan Heinrich, 22 April 2022, p 5.
[45] Exhibit D1, Report of Susan Heinrich, 22 April 2022, p 5.
[46] Exhibit D1, Report of Susan Heinrich, 22 April 2022, p 6.
[47] Exhibit D1, Report of Susan Heinrich, 22 April 2022, p 6.
Throughout her analysis, Ms Heinrich differentiates between Ms Miers’ capacity to understand and comprehend the matters specified in s 269H on the one hand and, on the other, Ms Miers’ capacity to acquire a very basic and literal awareness of such matters. Viewed in the context of her oral evidence, I understand Ms Heinrich’s point to be that there is a risk of misinterpreting comments made by Ms Miers as disclosing an understanding of the subject matter under consideration, when they are in truth learned or ‘parroted’ responses. As will be seen, Dr Ferris shares Ms Heinrich’s concerns. This is an observation that is also repeated consistently in the additional reports comprising Exhibit D1.[48]
[48] See, for example, Exhibit D1, Tabs 6 and 9.
Oral evidence of Ms Heinrich
In her evidence in chief, Ms Heinrich adopted the opinions expressed in her reports of March and April 2022 and maintained her view that Ms Miers is unfit to stand trial.[49]
[49] T50-51.
Section 269H(a) – Understanding the nature of the charges / allegations
In cross examination, Ms Heinrich acknowledged that Ms Miers was capable of understanding the charges in their ‘most simple and concrete state’ and responding to simple questions in very basic terms.[50] Ms Heinrich observed, however, that it would be difficult to determine whether Ms Miers’ responses to questions asked of her by her lawyer reflected her wishes or otherwise amounted to a parroted or ‘people pleasing’ response.[51] Ms Miers would struggle to grasp the concept of intent.[52]
[50] T52, 70.
[51] T53.
[52] T55.
She conceded that Ms Miers was capable of pleading to the charges, provided the options open to her and differences between pleading guilty and not guilty were carefully and simply explained,[53] avoiding the use of language such as ‘guilty’ and ‘not guilty’.
[53] T55-56.
Although acknowledging considerable limitations in Ms Miers’ capacity to understand and respond to the allegations, Ms Heinrich’s evidence does not support a finding of unfitness under s 269H(a).[54]
[54] T70.
Section 269H(b) – Exercising procedural rights
As to the exercise of procedural rights, Ms Heinrich considered Ms Miers would be entirely dependent on counsel. Her position was that the mechanics of language simply do not allow someone of Ms Miers’ capacity to understand such concepts so as to enable her to give meaningful instructions about how she wishes to exercise her rights:
So for example whether she chose to have a judge alone or a judge and jury, I don’t think there’s any level of simplicity that you could get that down to that she would be able to provide any form of useful instruction on that…[55]
[55] T59, 65.
When counsel for the prosecution returned to this topic towards the end of cross examination and asked whether, with the assistance of careful explanations and the employment of simple terminology, Ms Miers would be able to provide instructions about or exercise her procedural rights, Ms Heinrich’s position was clear:
I really really do not think so, I don’t think she has the capability of actually understanding, even in its most basic sense, decisions that she’s been asked to make.[56]
[56] T70.
Ms Heinrich considered it ‘incredibly unlikely’ Ms Miers could meaningfully follow the advice of her counsel, even if her rights were explained to her simplistically. She was likely to simply agree with any course proposed or suggested by her lawyers as she lacks the capacity to understand her rights and reason as to how she wishes to exercise those rights. In Ms Heinrich’s view, the underlying problem is that Ms Miers would not sufficiently understand the advice she receives so as to make anything resembling an informed decision. As she explained:
… she needs to understand the advice just enough to be able to say ‘Yes, this is what I want’ or ‘This isn’t what I want’. I don’t think she would be able to do that. I don’t think she needs to know all of the nuances or the strategy…[57]
[57] T71. See also T70.
This is a by-product of Ms Miers’ capacity for receptive communication approximating the capacity of a three and a half year old child, as Ms Heinrich explained:
I think it's incredibly unlikely. I think she's more likely just to agree. There's nothing concrete really about the whole court process and that's the level of her understanding. Her level of understanding as per the occupational therapy report is about a three and a half-year-old and if you were talking to a three and a half-year-old about court there is no simple enough language to assist, the language just doesn't exist, and the difficulty is that her expressive language is that of a later primary school, 11-ish year old means it's very difficult to tell what does she understand and what has she learned to respond in a way that is socially acceptable so that people accept her and don't pick on her.[58]
[58] T62-63.
Ms Heinrich reiterated her concern that although Ms Miers could, for example, provide a verbal response to the question ‘do you want to be tried by a judge or jury’, the response would be hollow because she does not have the capacity to understand the difference between the two forms of trial.[59] Whilst Ms Heinrich acknowledged that many people involved in the criminal justice system presented with such a question would likely act on their lawyer’s advice, there is an important distinction, she claims, between a person who is capable of questioning and considering that advice and a person who lacks the cognitive ability to do so and is therefore a completely disengaged legal participant.[60]
[59] T65, 70-71.
[60] T65.
Ms Heinrich rejected the proposition that such matters could, with special care, be meaningfully conveyed to Ms Miers.[61] She illustrated the lack of capacity to understand in this way:
HIS HONOUR
QJust on that I suppose there's a difference between someone's capability to store and retrieve information on the one hand and on the other one's capability to be presented contemporaneously with information and asked for a response to it and in your opinion, and it's obviously subject matter dependent, but is Ms Miers able to do the latter.
AI don't think so. Like I said you could ask her a single question, 'The witness said you hit her, did you hit her, yes or no?' but for a better example I'm not legally trained but 'Do you want there to be a judge or a jury'. You've instinctively got a hole. You need to understand what a judge alone means, you need to understand what a jury alone means and then you need to be able to do something with that information to come up with a response. It's probably not the best example, there's probably simpler things.
QWould she be able to grasp that concept communicated in these terms 'Do you want one person to decide your case or do you want 12 people to decide your case?'.
A.I don't think that she could make an informed decision on that because I don't think she is capable of understanding what the difference is. She would very much likely say 'You choose' or 'Yes' or she would pick, I hate to say it, based on whether she liked your hair or dressed in a suit that she liked or whether the 12 people looked friendly. There's no capacity - there's a lot of reasoning that even in its most simple terms has to occur behind that. That's what she's not capable of. If her lawyer said to her 'You should have a judge' she's probably just going to say 'Yes'.[62]
[61] T63.
[62] T64-65.

The following exchange concluded Ms Heinrich’s evidence:
HIS HONOUR
Q… part of the inquiry into fitness is whether she’s got the capacity to exercise her procedural rights. So it’s not necessarily just about choosing how you plead, but the way you participate in the process during a contested hearing and her ability to provide instructions and act on advice that she’s given.
AI think she doesn’t have capacity to do that and I’m just not confident that there is any remedial actions that could be taken to render her able to provide basic instruction, even considering that she has legal counsel to advise her. Just at that most basic fundamental level, I do not think she’s capable of understanding what’s going on, or what the consequences of her options might be. I don’t think she can hold multiple options in her head to decide what she wants.[63]
Section 269H(c) – understanding and the following the nature and course of the proceedings and the evidence
[63] T76.
It was Ms Heinrich’s opinion that Ms Miers is unable to understand the nature of or follow the course of proceedings or the evidence.[64]
[64] T60.
Ms Heinrich said that when she asked Ms Miers who was in charge of the court room, the best answer she could spontaneously get was ‘a man’. With prompting, Ms Miers was able to supply some additional detail. Ms Heinrich considered Ms Miers would be aware that the judge was, in a sense, in charge of the court room and would ‘look at paperwork’; that her lawyers were her ‘friends’ and that the ‘police lady…is maybe not my friend, maybe not good for me’.[65]
[65] T61, 62, 66.
As to the course of the proceedings and Ms Miers’ capacity to follow the evidence, Ms Heinrich observed:
And in terms of the proceedings even in its most simple terms I just don’t think she’s going to be capable enough of understanding the most basic of what’s going on. Now if she’s not required to understand anything further than ‘I did it’ or ‘I didn’t do it’, then yes, she’s probably fit to stand trial but if she’s required to – it’s probably not relevant in this matter but I don’t know, listen to someone give evidence and be able to even hear back from her lawyer afterwards ‘This is what the person said’ and then to be able to raise an objection if she disagrees with that, I don’t think she’s capable of doing that. I didn’t think she’s capable of any level of subtlety even when it’s broken down to its simplest terms, that’s just beyond her.[66]
[66] T60.
When counsel returned to the issue of Ms Miers’ capacity to follow the evidence in the context of what was described as a ‘simple case’, Ms Heinrich appeared to accept that Ms Miers could possibly understand the evidence against her. However, she added:
Possibly, if it is done very carefully and if what she is asked about is very very concrete and clear. If there's any level of subtlety or anything, I think would be very difficult. I don't think she would be able to follow anything in court and in fact, thinking creatively, if all evidence was available such that her counsel could have conversations with her away from the courtroom, even without, I still wouldn't be confident she's following all of the pieces of it. So if it can be broken down absolutely simply enough, she can probably follow it, but she's not going to follow it live and it's going to require, I can only imagine a huge number of - I mean it's hard to tell, I don't know how the evidence will be presented and all those sorts of things, but a lot of breaks a lot of time and even then I wouldn't be hugely confident that she's not just answering it in what she perceives to be a socially acceptable way.[67] (emphasis added)
[67] T68.
Ms Heinrich’s final position on Ms Miers’ ability to follow the evidence and the proceedings emerged at the end of her cross examination. Her evidence was that Ms Miers would be unable to follow ‘really anything said in this room’. Even with regular breaks, Ms Heinrich’s opinion was that there could be no confidence that Ms Miers was following what was occurring in court.[68]
[68] T72.
It was put to Ms Heinrich that if Ms Miers was provided with detailed, yet simple, explanations, she would be able to understand the course of the proceedings in a general sense. Ms Heinrich again rejected this contention, as is clear from the following passage:
QAlong the same lines if Ms Miers was provided with regular breaks and the opportunity to have things explained to her on multiple occasions would that assist with her ability to understand the court process.
AI don't believe so. She's not able to retain that information for long enough, or if you were to explain everything she needed to know in its basic simple sense at every break as Dr Ferris was explaining, executive functioning deficits, working memory there, some of the core things damaged in fetal alcohol syndrome, so you've got this issue that all the pieces of information, she's not even going to be able to hold all the pieces of information in her head to manipulate them enough to give a response. These are things that we do every day and take for granted.[69]
[69] T64.
This topic was picked up later in cross examination and it was suggested again that with detailed explanations given in ‘simple terms’, Ms Miers would be able to follow the course of proceedings in a general sense. Ms Heinrich’s response was as follows:
By ‘general sense’ if it is understood that his Honour is the boss and makes the choice and you guys are having an argument and he’s the umpire, yes. In the sense of anything more complicated I really don’t think she has any idea of what’s going on today or why she’s here other than the fact she’s been naughty. You might be able to explain to her that the witness is the person whose house you walked into, I think she could understand that but I don’t think she would be able to follow any level of that questioning. Like I said a very blatant concrete question ‘She says that you hit her, did you hit her?’, she could probably respond to that but anything more subtle is going to be completely lost and I don’t think it’s going to be possible to explain all of that. Again it’s for the court to decide what is sufficient, is the fact that there’s an argument happening here and someone who is the boss is making the decision, sure, I think that could be understood but anything more than that I don’t think is capable being able to be explained to her in any way that we can get any level of confidence and understanding.[70]
[70] T66, 72.
Dr Ferris’ approach to fitness
Dr Ferris assessed Ms Miers on 31 May 2022.
Ms Miers provided Dr Ferris with a version of events that, in some respects at least, reconciled with GG’s affidavit and with other features of the anticipated evidence. Notably, however, Ms Miers told Dr Ferris that she was charged with aggravated assault but that ‘she hadn’t hurt anyone’.[71] I pause here to identify three relevant matters that follow from this: first, Ms Miers adverted only to one charge and, in doing so, mischaracterised the charge in a substantial way. There is no allegation that Ms Miers committed an act of violence against GG and there is no charge of aggravated assault on the Information. Secondly, Ms Miers’ comment indicates an ability to assert a denial of an allegation which Ms Miers clearly rejects, albeit it is not clear to me when and how Ms Miers came to have this understanding of the allegations against her. Thirdly, and following on from the preceding observation, it will be recalled that Ms Miers was unable to remember anything about the alleged offences when she spoke with Ms Heinrich in January 2022. The explanation for the change in position is not entirely clear. It may be a product of spontaneous recollection or it may be a product of information (or misinformation) received by Ms Miers in the intervening period.
[71] Exhibit D1, Report of Dr Ferris, 15 July 2022, [13.1].
Dr Ferris obtained the following information relevant to the criteria in s 269H:
·Ms Miers said that the role of her lawyer was to ‘talk to the judge up the front’; that she ‘was trying to help me so I don’t get too much in trouble’; and had ‘been trying to figure out a solution explaining what I did was wrong and finding a better way for my needs’.[72]
·The role of the prosecutor, in Ms Miers’ eyes, was to ‘get me in trouble because that’s what the police do’.[73]
·Ms Miers described the role of the judge as being to ‘listen to the police lady and the lawyer and go between the both of them’ and to identify ‘what’s the best solution and says yep, yep and looks at who is in trouble’.[74]
·Ms Miers described ‘guilty’ as meaning ‘what they did’, ‘they’re bad’ and not guilty as ‘they’re okay’. According to Dr Ferris, Ms Miers had difficulty explaining, even in simple terms, the court process and the difference between guilt and innocence.[75]
[72] Exhibit D1, Report of Dr Ferris, 15 July 2022, [13.1].
[73] Exhibit D1, Report of Dr Ferris, 15 July 2022, [13.2].
[74] Exhibit D1, Report of Dr Ferris, 15 July 2022, [13.1]-[13.2].
[75] Exhibit D1, Report of Dr Ferris, 15 July 2022, [13.2].
Dr Ferris expressed the following opinions as to Ms Miers’ fitness to stand trial:
·Ms Miers is able to ‘superficially’ understand the charges brought against her and respond rationally to them (s 269H(a)).
·Ms Miers would have ‘significant difficulties understanding the proceedings and explaining the proceedings of the court and would have difficulty giving rational instructions about procedural matters’ (s 269H(b)).[76]
·Having regard to Ms Miers’ behavioural and cognitive deficits, she would have ‘significant difficulty participating in the court process’ (s 269H(c)).[77]
·Even with ‘extra time, clear and concise information from her lawyer and the ability to have breaks…she would be unable to understand the nature of the proceedings, follow the proceedings and exercise her procedural rights’.
[76] Exhibit D1, Report of Dr Ferris, 15 July 2022, [13.4].
[77] Exhibit D1, Report of Dr Ferris, 15 July 2022, [13.4].
Accordingly, Dr Ferris considered Ms Miers was unfit to stand trial on account of s 269H(b) and (c).
Oral evidence of Dr Ferris
In her evidence in chief, Dr Ferris emphasised that one of the difficulties in assessing Ms Miers’ understanding of the issues to which s 269H directs attention is differentiating between learned or parroted answers given by Ms Miers and answers which actually reflect a degree of understanding on her part.[78] Ms Heinrich expressed the same concern. Even contextually appropriate answers given by Ms Miers to questions may not necessarily reflect an understanding of the subject matter of the question or the import of her answer. As Dr Ferris explained:
In her situation though what we find with her level of disability is there’s a lot of trial and error with answers. There’s a lot of ‘yes’, ‘no’ answers, there’s a lot of guessing what an examiner, what a person would want you to say, and because she’s had this illness for so many years, that’s part and parcel of her adaptive functioning. So she may over time be able to guess what the answer is required of her lawyer, without a true comprehension and understanding of the question itself.[79]
[78] T11-12, 19-20.
[79] T20.
Section 269H(a) – Understanding the nature of the charges / allegations
It was the opinion of Dr Ferris that Ms Miers was ‘superficially able to understand her charges but again they were parroted to me without an extensive understanding of what she has been charged with’.[80]
[80] T11, 29.
As I have said earlier, it is not necessary for a defendant to have an ‘extensive understanding’ of the charges they are facing to be fit to stand trial. I note however that Ms Miers in fact appeared to misunderstand that she had been charged with aggravated assault.[81]
[81] T30-31.
In cross examination, it was put to Dr Ferris that the circumstances in which Ms Miers is alleged to have used the stolen bank card is indicative of her capacity to reason and adjust her behaviour. In turn, this was said to be relevant to whether Ms Miers understood the nature of the allegations against her and the extent to which she could understand the court proceedings.[82] Whilst identifying the difference between an investigation into mental competence to commit an offence and fitness to stand trial, Dr Ferris otherwise appeared to accept that the circumstances in which the alleged offences of theft and deception were committed is relevant to the s 269H(a) inquiry. As I have said however, both Ms Heinrich and Dr Ferris have consistently been of the view that Ms Miers is not unfit on account of s 269H(a).
[82] T28.
Section 269H(b) – Exercising procedural rights
With respect to s 269H(b), in examination in chief Dr Ferris confirmed the opinion expressed in her report:
… I believe that in terms of part B that she would have significant difficulties as I've quoted: 'understanding the proceedings, explaining the proceedings and giving rational instructions about procedural matters'. And as I said that's a combination of both the behavioural deficits of her illness but also the cognitive deficits and I believe she would have difficulties understanding the nature and following the evidence as well.[83]
[83] T11.
In cross examination, Dr Ferris reiterated her concerns as to Ms Miers’ capacity to understand her procedural rights:
It’s her ability to identify with her lawyer her understanding of the facts of the case, plead guilty or not guilty to the case and then within the actual court hearing itself, identify items she disagrees with and questioning and clarifying as well. So all of those things I don’t believe she’s capable of doing within the court process.[84]
Section 269H(c) – Understanding and following the nature and course of the proceedings and the evidence
[84] T49.
According to Dr Ferris, the main area of concern with respect to Ms Miers’ fitness to stand trial is the criteria dealt with in s 269H(c). In examination in chief, Dr Ferris explained:
A…I guess my main concern, yes, relates to (c) which is her inability to understand the nature of the proceedings and to follow evidence over the course of the proceedings. That would be what I would weight mostly in my consideration of the three arms, yes.
QAnd is your view that that pertains to her ability to follow the proceedings as they unfold in real time.
ADefinitely, yes.
QAnd can that be ameliorated by, for instance, coaching her or instructing her ahead of time.
AI do not believe so. I have suggested with other cases where I feel it might be the case with breaks and further liaison with the lawyer and with Ms Miers I believe in real time she would have difficulties following the court proceedings.
QBeyond difficulties, is she capable.
ANo.
QAnd in terms of revision after the fact, after the evidence, if she’s taken aside after a body of evidence has unfolded and it’s explained to her and clarified would that ameliorate the situation from your point of view.
ANo, I don’t believe so, based on my assessment but also on the clear reports that have been done about her memory and her short term memory and the fact there are significant difficulties there.[85]
[85] T12.
In cross examination, Dr Ferris accepted that:
·Ms Miers was able to tell Dr Ferris who her lawyer was and that her lawyer was ‘trying to help me out so I don’t get in too much trouble’;[86]
·Ms Miers had said that her lawyer had been talking to the judge whose role was to ‘listen to the police lady and lawyer and go between the both of them and say what’s the best solution’;[87]
·Ms Miers had a ‘superficial understanding’ of aspects of the court proceedings, which Dr Ferris explained to mean that ‘with direct questioning from me, which you often have to do with [FASD] to actually ask their knowledge of the people in the court she was able to give me a response, but her understanding of how all those people worked together was impaired’;[88]
·Ms Miers understood she had been charged with an offence (albeit, she mis-identified the offence) that required her to go to court.
[86] T33, 34.
[87] T33, 34.
[88] T34, 35.
Dr Ferris did not accept that the information she obtained suggested Ms Miers had been able to learn about the nature of the proceedings. Her view was that Ms Miers did not have a true understanding of the workings of the court and was merely responding to directive and descriptive questions.[89]
[89] T36-38, 49.
Nor did Dr Ferris accept that providing Ms Miers with additional breaks so as to enable her lawyers to explain the progress of the proceedings would render Ms Miers fit to stand trial.[90]
[90] T41.
Before concluding her evidence, Dr Ferris was asked to summarise her position with respect to ss 269H(b) and (c):
HIS HONOUR
QInsofar as you're able to, can you give me, by way of a summary, your view on what it is about the nature of these proceedings that Ms Miers is unable to understand.
AWell without generalising, most of the proceedings I would say. She is unable to reasonably understand the roles of the people within the court. She's reasonably unable to understand her particular role of her lawyer and how the lawyer is assisting her in the court, and she also would be unable to understand her ability to advise on the offence itself and her ability to plead as well, and even understanding the facts of the case, the facts of the charges. So I believe all of those things in the lead-up and then actually in the courtroom, it's nuanced in that she can't understand the workings and proceedings of the court, but she also separate to that and this isn't the main sway, is the behavioural sort of activations and consequences of her FASD, which include the distractibility, the poor attention span, the inability to question people on the stand and things likes that.
QAnd then next, in relation to her capacity to follow the evidence - and bearing in mind your assumption that you made for the purpose of your assessment that the allegations were simple -
AYes.
Q- are you able to summarise the basis of your conclusion that she would be unable to follow the course of the evidence.
AI believe she has such significant receptive understanding and we've documented that of a 4-year-old, she would not be able to follow the discussions, the to and fro, have the ability to question, as I said before, within her rights to advise her lawyer if need be and question witnesses on the stand as well.
QAll right. I think you've answered it in part in that explanation, but I think you were going to give me just a summary of why you say she would be unable to exercise her procedural rights and what you understand by the phrase 'procedural rights'.
AIt's her ability to identify with her lawyer her understanding of the facts of the case, plead guilty or not guilty to the case and then within the actual court hearing itself, identify items she disagrees with and questioning and clarifying as well. So all of those things I don't believe she's capable of doing within the court process.[91]
[91] T48-49.
Neuropsychological assessments
In addition to the forensic assessments undertaken by Ms Heinrich and Dr Ferris, a bundle of medical reports[92] was tendered on Ms Miers’ behalf with the consent of the prosecution. It was agreed by the Director that I could rely on these reports as if the authors had given evidence in accordance with the contents of the reports.[93]
[92] Exhibit D1, Tabs 4-9.
[93] T97-98.
Andrew Rothwell, a clinical neuropsychologist, assessed Ms Miers in 2018 and 2021. The results of his assessment may be briefly summarised:
·In 2018, Mr Rothwell found Ms Miers to have an IQ of 65 which is within the ‘extremely low range’.
·Test results indicated a ‘severe impairment of general intellectual functioning and executive function with a more moderate impairment of learning and memory’.
·With respect to learning and memory, Mr Rothwell observed: ‘The finding of only moderately impaired learning and memory can be seen as a positive in this context and shows that she can learn with repetition and hold on to the majority of the learning over time. Her executive dysfunction however means that her capacity to organise these memories and effectively use them has been diminished.’
·In 2021, Mr Rothwell noted that Ms Miers’ ‘appeared to be doing better than she did three years ago’. Her full scale IQ was recorded as 74, still within the ‘below average range’ but ‘significantly improved from her score 3 years ago of 65’.[94]
·There had been a ‘substantial improvement in verbal ability mainly attributable to greatly enhanced abstract verbal reasoning. Perceptual reasoning remains largely unchanged in the low average range. Working memory has shown a mild decrease largely due to reduced mental arithmetic. Processing speed is improved across the board both for visual and visuomotor performance.’[95]
·As to Ms Miers’ capacity to learn, Mr Rothwell recorded: ‘Whilst a reasonable learning curve was evident over five trials overall learning was still extremely low and this has not changed from three years ago.’ I bear in mind the commentary of Ms Heinrich and Dr Ferris on the care to be taken when looking at these ostensible improvements, which could be the by-product of any number of variables and do not necessarily correspond with a true improvement in cognitive capacity.[96]
·Mr Rothwell concluded that there were signs of ‘significant improvement overall despite a number of performances below where they were three years ago. In particular general intellectual functioning is improved largely due to improvements in abstract verbal reasoning and processing speed. There is also some indication that delayed recall and deductive reasoning has improved.’[97]
·Nonetheless, Mr Rothwell cautioned against attributing too much weight to the improvements, remarking that Ms Miers is ‘…still considered to be moderately impaired due to FASD. Her learning and memory is still substantially impaired overall both on neuropsychological assessment but also on functional assessment.’
[94] Exhibit D1, Tab 8; T14, 17, 58.
[95] Exhibit D1, Tab 8.
[96] T57-58.
[97] Exhibit D1, Tab 8.

I note that Mr Rothwell’s assessments were undertaken for clinical and not forensic purposes and some care is required in translating the results of neuropsychological testing in that context into the fitness calculus established by s 269H. I also bear in mind that the tests were administered, most recently, two years ago. Nonetheless, they provide a guide as to Ms Miers’ level of functioning.
The GPS therapy report
In October and November 2020, Ms Miers underwent a functional assessment as part of an inquiry into whether she met the criteria for Supported Independent Living funding. The assessment was conducted by Occupational Therapist, Luke Francis, who carried out a number of behavioural and functional tests. One of those tests, the Vineland Adaptive Behaviour Scale test, measures the examinee’s adaptive functioning compared to a sample of their age based peers. In his preamble to the results of this testing, Mr Francis explained the methodology used to obtain the information relevant to the results:
Importantly, the Vineland was completed by gathering information from [Ms Miers’] Support Workers. This is significant, as results are based on perceptions of others and may at times over-represent [Ms Miers’] functional capacity in areas such as communication (others may believe [Ms Miers] understands when she may not and / or others may not be aware when [Ms Miers] has difficulty finding the right words when speaking to others).[98]
[98] Exhibit D1, Tab 7, p 4.
The results of the Vineland test suggest Ms Miers has the receptive communication skills of a three and a half year old; the expressive communication skills of a child of 11 years and nine months age; and the written communication skills of a seven year old, placing her communication capabilities in the bottom one percent of a sample of her age based peers. Mr Francis explained the results in these terms:
This score indicated that [Ms Miers] appears (to others) to have significant deficits in receptive and written communication, with a relative strength in expressive communication.[99]
[99] Exhibit D1, Tab 7, p 5. The report of speech pathologist Emma Armstrong (Exhibit D1, Tab 9) provides some practical insight into the implications of Ms Miers’ communication capacities.
Further tests administered by Mr Francis indicated ‘considerable difficulty with retaining verbal information, in particular when [Ms Miers] is provided with large amounts of information at one time…’ Mr Francis concluded:
One of the most insidious aspects of FASD is the inconsistencies that can be inherent in [Ms Miers’] ability to complete particular tasks. While she may be able to engage independently with a task on one occasion, she will be unable to complete the same task on another occasion for no apparent reason. It is also likely that [Ms Miers’] has developed strategies over time to mask the difficulties she faces, which may lead others to believe her comprehension and abilities are greater than they really are.[100]
[100] Exhibit D1, Tab 7, p 11.
Arguments of the parties
Mr Lang focussed his submissions on s 269H(c). He drew attention to the disjunctive operation of s 269H(a)-(c) and correctly observed that each must be given work to do.[101] A finding that the presumption had not been rebutted in relation to one aspect of s 269H would not automatically translate into a failure to discharge the defendant’s burden in relation to any other limb.
[101] T90.
Mr Lang emphasised what he described as the definitive statement of Dr Ferris that Ms Miers would be unable to understand the nature of the proceedings, follow the course of the proceedings and exercise her procedural rights.[102]
[102] T89.
Focussing on the distinction drawn by Ms Heinrich and Dr Ferris between Ms Miers’ capacity to provide a verbal response to an inquiry on the one hand and understanding the question asked of her and the implications of her response on the other, Mr Lang argued that the mere capacity to verbalise a response is not sufficient. When presented with a choice as to the exercise of a procedural right, for example, it is not enough that Ms Miers can give an answer: she must have some understanding of the choice she is being presented with and the implications of making a particular choice.[103] Mr Lang contended that, on the evidence, Ms Miers lacks even the undemanding threshold level of understanding required for a fair trial, making this a case not merely of impairment or reduced capacity, but incapacity within the meaning of s 269H.
[103] T92-93.
Mr Lang argued that Ms Miers’ presentation in the dock, as explained by Ms Heinrich,[104] was consistent with the expert evidence concerning her capacity to participate in the proceedings and that the substantial alignment in the opinions of Ms Heinrich and Dr Ferris as to Ms Miers’ fitness established a sound basis to conclude that Ms Miers is unfit.[105]
[104] T61.
[105] T89, 96.
Ms Barnes, counsel for the Director, accepted that in applying the s 269H criteria, Ms Miers’ receptive communication capacity was an important, but not determinative, starting point. She argued it was just one matter to be considered[106] together with Ms Miers’ ability to learn and her more advanced expressive communication capabilities.[107] The Director’s submission was that the evidence fell short of establishing that Ms Miers was, in the language of Hayles, ‘entirely unable’ to understand or reason as required by s 269H.[108]
[106] T98-99.
[107] T98-99.
[108] T101.
Whilst I accept that a holistic assessment of fitness is required, I have difficulty with the submission that the evidence supports the conclusion that Ms Miers is able to ‘learn’ in a manner relevant to s 269H, such that any shortcomings in her capacity could be ameliorated through further instruction, education or explanations. There is an important distinction between Ms Miers learning from 40 years of life and behavioural experiences and possessing the cognitive capacity to be educated about the criminal justice system, as Ms Heinrich explained:
The reason why I wanted to go back and talk about the learning is that there's different aspects to learning and for someone of Ms Miers' level of functioning which is that of, in essence, a young child, very behavioural and practical learning tends to stick. So 'I put my hand on a hot stove, it burns, I don't put my hand back on a hot stove'. You can explain such a concept to a toddler or a young child, you can explain to them 'Do not put your hand on the hot stove'. Some might take that on but you'll still have, if you've ever been around a younger child they will still tend to go and put their hand on a hot stove despite the fact you've told them not to because the verbal information is very different to a physical learning. A physical learning is much more immediately consequential I suppose which is why, sorry, in terms of point (a) to say 'Did you walk into the house? Did you take a wallet?' those things are very behavioural. Pretty much everything that goes on within the court is almost entirely theoretical. So, for example, whether she chose to have a judge alone or a judge and jury, I don't think that there's any level of simplicity that you could get that down to that she would be able to provide any form of useful instruction on that and I understand legally she's represented by counsel and that is the responsibility of counsel. I suppose from my perspective at what point of responsibility does the court deem it to be put on the counsel and at what point does a person actually have a right to participate in their own proceedings. And in terms of the proceedings even in its most simple terms I just don't think she's going to be capable enough of understanding the most basic of what's going on. Now if she's not required to understand anything further than 'I did it' or 'I didn't do it', then yes, she's probably fit to stand trial but if she's required to - it's probably not relevant in this matter but I don't know, listen to someone give evidence and be able to to even hear back from her lawyer afterwards 'This is what the person said' and then to be able to raise an objection if she disagrees with that, I don't think she's capable of doing that. I don't think she's capable of any level of subtlety even when it's broken down to its simplest terms, that's just beyond her.[109]
[109] See also the evidence of Dr Ferris at T13-14; 32, 36, 42-44.
Ms Barnes emphasised that an understanding of legal arguments or the tactical and forensic landscape of a trial is not required to be fit to stand trial. In the context of simple and confined factual allegations and having regard to the role that counsel play in criminal litigation and the guidance and assistance that could be provided to Ms Miers by her mother and her support worker/s, Ms Barnes argued that the presumption of fitness had not been rebutted.
With respect to Ms Barnes’ cross examination suggesting that the manner in which the alleged offences were committed is relevant to the fitness assessment, that may be accepted with respect to s 269H(a). As I have said earlier, however, there is no real issue as to s 269H(a) in this case. The circumstances surrounding the alleged commission of an offence may not be irrelevant to the other limbs of s 269H, but the connection may in some respects be less obvious.
Finally, Ms Barnes drew attention to what might be described as taxonomical anomalies in the evidence. Dr Ferris for example said in her report that Ms Miers would have ‘significant difficulties’ exercising (or instructing as to) her procedural rights, understanding and participating in the proceedings.[110] Ms Barnes submitted that Ms Heinrich made similar concessions, insofar as she acknowledged that Ms Miers had a ‘superficial’ capacity to follow the proceedings and occasionally suggested Ms Miers would have ‘difficulty’ with certain features of the process.[111] It was submitted that it is difficult to reconcile these observations with the witnesses’ opinions that Ms Miers is unfit, supporting the hypothesis of a misapplication of the test.
[110] Exhibit D1, Report of Megan Ferris, 15 July 2022, [13.4].
[111] T110-111.
When the evidence is reviewed in its totality, and having had the benefit of seeing Ms Heinrich and Dr Ferris give their evidence and the conviction they hold that Ms Miers is unfit, I consider that these taxonomical anomalies, if they are that, do not detract from the substance of their evidence. Indeed, at one level, the use of qualified language simply recognises that it is not for the witness to express an opinion in terms that usurp the Court’s role in determining fitness. In another case, anomalies of this kind might be significant. Here, however, I do not consider they reveal a misapprehension of the applicable test. In any event, and as I have said, it is ultimately for me to determine whether Ms Miers is ‘unable’ to understand the matters with which s 269H is concerned.
Consideration
I accept the evidence of both Ms Heinrich and Dr Ferris. I found both to be persuasive and astute witnesses. There was no challenge to their qualifications or expertise, nor to the facts or assumptions upon which their opinions were based. The principal focus of the Director’s challenge to their evidence was whether they had adopted the correct approach to the test prescribed by s 269H. As noted earlier, no contradictory expert evidence was adduced by the prosecution.
Both Ms Heinrich and Dr Ferris unwaveringly consider that Ms Miers is unfit to stand trial. Of course, to the extent that their opinions trespassed into this ultimate issue, the responsibility for deciding whether Ms Miers is fit to stand trial falls upon me. I bear in mind the following observation by Stanley J concerning the correct approach to evaluating uncontradicted expert evidence:
The trier of fact, whether a judge or jury, is not bound to accept and act upon expert evidence, however, they are not entitled to disregard it capriciously. In deciding the ultimate fact in issue the judge or jury are bound to consider not only the expert evidence adduced but the evidence upon the whole facts and circumstances relevant to the fact in issue. If the expert evidence is all one way and in favour of the accused and there is nothing in the facts and surrounding circumstances which lead to a contrary conclusion then a verdict against the expert evidence cannot be sustained.[112]
[112] R v Taylor [2014] SASCFC 112, [34].
Section 269H(a) – does Ms Miers understand the charges and allegations
Both Ms Heinrich and Dr Ferris are of the guarded view that, having regard to the confined and uncomplicated nature of the allegations, Ms Miers is not unfit on account of s 269H(a).[113] I accept, in some respects, the description of the allegations as straightforward. However, little attention was given either in the reports of Ms Heinrich and Dr Ferris or their oral evidence to the elements of the offences. Despite the simplicity of the underlying factual allegations, there are some subtleties arising from the interrelationship between the factual allegations and the elements of ASCT and deception. As I have said, no reliance was placed on s 269H(a) by counsel for Ms Miers. Given the consensus between Dr Ferris and Ms Heinrich on this issue and applying the presumption of fitness, I am not satisfied that Ms Miers is unfit on this basis.
Section 269H(b) – is Ms Miers able to exercise or giving instructions about the exercise of procedural rights
[113] T70.
The capacity to exercise or give rational instructions about the exercise of procedural rights must contemplate that:
·the defendant understands that they have certain procedural rights, although plainly enough this understanding does not need to exist independently of guidance and advice by counsel about the rights available to a defendant;[114]
·the defendant understands in a general sense what the exercise of those rights might entail;
·the defendant has the capacity to give informed instructions to their counsel as to how they wish to exercise any such rights.
[114] Ngatayi v The Queen (1980) 147 CLR 1, [9].
That is to say, more is required than the mere capacity to give a verbal response to a question concerning the exercise of a right.
The view expressed by Ms Heinrich in her first report was that Ms Miers was incapable of exercising or giving rational instructions about the exercise of her procedural rights.
In her second report, Ms Heinrich explained that Ms Miers would be unable to understand the rationale behind such rights or reason as to how they should be exercised and would be solely reliant on counsel. I pause here to reiterate that a defendant does not need to appreciate the rationale behind procedural rights to be fit to stand trial, in the same way that a defendant need not understand the forensic or tactical decisions customarily made by counsel in the course of contested litigation.
Ms Heinrich’s oral evidence was however clear: Ms Miers is not capable of comprehending instruction or advice about the existence or exercise of procedural rights. Any verbal response that Ms Miers might give to an inquiry from counsel as to whether, for example, she wishes to give evidence in her defence, would not reflect a considered position. Indeed, on the evidence, she is unlikely to be able to process what giving evidence entails in any meaningful sense. One could have no confidence that any verbal indication by Ms Miers as to how she wishes to exercise a procedural right reflects comprehension on her part of the existence of the right; what the right entails and the potential consequences of exercising (or not, as the case may be) the right.
Dr Ferris was equally clear that Ms Miers is unable to exercise her procedural rights because of her cognitive deficits.
Ms Miers may have the capacity to give a verbal response to an inquiry from counsel about the exercise of a procedural right, such as giving evidence in her defence. However, the evidence satisfies me that any such response would be hollow and essentially what Ms Miers would perceive to be a ‘people pleasing’ response, or a learned or parroted response. I am satisfied that any such response would not indicate a comprehension on her part of what the right is; what it entails and the implications of engaging the right. This is the difficulty to which Ms Heinrich speaks at page 4 of her second report, when she observed, in the context of the right of challenge: ‘Even if this information was explained sufficiently to her, her cognitive capacity is such that she would be unable to reason as to when to exercise this right and such decisions would solely rest on her legal counsel’.[115] Dr Ferris gave evidence to similar effect.[116]
[115] Exhibit D1, Report of Susan Heinrich, 22 April 2022, p 4; T71.
[116] T19, 49.
The same may be said of Ms Miers’ capacity to exercise other procedural rights such as the right to elect for a trial by judge alone. It may be that Ms Miers could give a verbal response to advice that she can have her case decided by a judge or a jury. On the totality of the evidence however, her answer would represent nothing more than either a guess as to what she thought the questioner wanted her to say, or a learned response.[117] I am satisfied she would not have any understanding of the significance or potential implications of making an election, bearing in mind her elementary receptive communication capacity.[118]
[117] T59, 62-63, 65-66, 73.
[118] T49.
I am satisfied that Ms Miers does not have the capacity to make an informed decision whether to give evidence in her defence or exercise other procedural rights because she is incapable of understanding what those rights are; what the competing options entail and the potential implications of exercising or not exercising the right, even in a general sense. Indeed, Ms Heinrich’s evidence, which I accept, was ‘Just at that most basic fundamental level, I do not think she’s capable of understanding what’s going on, or what the consequences or her options might be. I don’t think she can hold multiple options in her head to decide what she wants’.[119]
[119] T76.
I acknowledge that Ms Miers would have the benefit of advice and guidance from counsel in relation to the exercise of her rights and that this remains an important factor. However, whilst counsel provides assistance and guidance, it remains a feature of adversarial criminal justice that a defendant bears the ultimate responsibility for deciding, for example, whether to give evidence in his or her defence and whether to have a trial before a judge sitting without a jury. It would be impractical if not impossible for counsel to reliably determine whether any instructions given by Ms Miers as to the exercise of a procedural right in fact reflect (1) an even basic understanding of the right and the manner in which it may be exercised and (2) an informed decision as to how she wishes to exercise that right.[120]
[120] T19, 60, 62, 76.
I am persuaded on the balance of probabilities that even though Ms Miers could give a verbal answer to inquiries about how she wishes to exercise her procedural rights, her answer would not reflect a reasoned position.[121] She would, I find, be unable to comprehend the nature of her rights and the potential implications of exercising her rights, even at a basic level. I am satisfied that Ms Miers is entirely unable to exercise her procedural rights or give rational instructions about the exercise of those rights.
Section 269H(c) – is Ms Miers able to understand the nature of the proceedings, follow the course of the proceedings and follow the evidence
[121] T19.
Section 269H(c) is comprised of three sub-limbs. I propose to deal with each sub-limb separately:
Understanding of the Nature of the Proceedings
I find that Ms Miers’ demonstrated to Ms Heinrich and Dr Ferris a very general, and superficial, understanding of the role of her lawyer, the prosecutor and a judge.[122]
[122] T33-40, 44.

It is not clear to me whether Ms Miers has any understanding of the potential outcomes of the court proceedings and, in particular, the possibility of a sentence of imprisonment being imposed. On one view of Ms Heinrich’s evidence, it is unlikely Ms Miers has any such understanding.[123] Nor is it clear to me whether Ms Miers would have any understanding that she cannot be found guilty of any offence unless her guilt is proved by the prosecution beyond reasonable doubt.
[123] T61, 76.
Whilst the evidence reveals that Ms Miers provided unsophisticated and rudimentary descriptions of the nature of these proceedings and key participants, I am not satisfied on the balance of probabilities that Ms Miers is entirely unable to understand the ‘nature’ of the proceedings. At a fundamental level, the ‘nature’ of the proceedings is an inquiry into whether Ms Miers is guilty or not guilty of the charges. Ms Miers appears to understand that her lawyer will assist her in court to obtain a favourable outcome;[124] that there is another party to the proceedings that is speaking against her or, as she described it, trying to get her in trouble; and that a judge will determine the outcome and work out what the ‘best solution’ is.[125] She appears to understand that the purpose of court convening is

‘because you are in trouble’. That is to say, Ms Miers appears to understand, albeit at a very superficial level, that the purpose of the proceedings is to ascertain whether she has done something wrong and that someone will make a decision about whether she has done something wrong.[126]
[124] T33.
[125] T34, 61.
[126] T66, 72.
Ms Miers appears therefore to have some understanding of the defining characteristics of adversarial criminal justice, even if only at a very superficial level. For these reasons, I am not satisfied that Ms Miers is entirely unable to understand the nature of the proceedings. The presumption of fitness has not been rebutted. In reaching this conclusion, I have taken into account that the nature of the proceedings remains static and does not change over time.
Ability to follow the course of the proceedings
In contrast with the nature of the proceedings, the course of the proceedings, and the evidence led throughout the proceedings, are dynamic features of litigation, which are constantly evolving.
Both Dr Ferris and Ms Heinrich were of the opinion that Ms Miers is not capable of following the course of the proceedings. I agree.
With respect to Ms Miers’ capacity to understand and follow the course of the proceedings, I find:
·Ms Miers would be unable to understand most of what is said in Court.[127]
·She is unable to follow the proceedings as they unfold in real time.[128]
·Providing further instruction, explanation or breaks throughout the proceedings will not render her able to follow the proceedings.[129]
·Ms Miers lacks the capacity to meaningfully reason about the advice of her counsel concerning the course of the proceedings, even if things are explained to her simplistically, as her capacity for comprehension is equivalent to that of a three and a half year old.[130]
·There is no prospect of improvement over the next 12 months.[131]
[127] Exhibit D1, Report of Susan Heinrich, 22 April 2022, p 5.
[128] T12, 48, 68.
[129] T12, 19, 41, 62-63.
[130] T62.
[131] T17.
Although, Ms Miers might have some capacity to understand the nature of the proceedings, following the course of the proceedings requires the ability to comprehend and process how the litigation is unfolding and progressing.
I am satisfied that because of the combined effect of Ms Miers’ cognitive limitations; her executive dysfunction; and her elementary receptive communication skills, Ms Miers would be entirely unable to follow the proceedings, even with additional breaks, detailed explanations, careful instruction and assistance.[132] The substantial deficit in her capacity to comprehend and process information in real time, which was reflected in the complete absence of anything resembling an awareness of what was occurring during the hearing of these proceedings, is a compelling marker that Ms Miers is entirely unable to follow the proceedings.
[132] T61, 63-64, 66-67, 76.
Applying the fitness criteria in a common sense and reasonable fashion, I am satisfied that there is no realistic way to manage or otherwise distil the proceedings with sufficient simplicity to render Ms Miers fit to stand trial.
Ability to follow the evidence
I accept the evidence of Ms Heinrich and Dr Ferris that Ms Miers is incapable of following the evidence as it unfolds.[133] I am mindful, in this respect, of the tension between Ms Heinrich’s second report, aspects of her oral evidence, and her ultimate position that Ms Miers would be unable to follow anything said in the court room. Nonetheless, the ultimate opinion of both Dr Ferris and Ms Heinrich is that Ms Miers would be unable to follow the evidence. As Dr Ferris explained, Ms Miers has such a significant impairment of receptive communication capabilities that she could not follow the ‘to and fro’ that characterises oral evidence.[134] Whilst some words and concepts might be familiar to and picked up by her, I am satisfied that Ms Miers would not be able to follow the substantial effect or gist of the evidence.
[133] T10-11, 12, 48-49, 61-62, 66, 68, 72.
[134] T49.
I reach that conclusion acknowledging that the evidence led against Ms Miers is likely to be comprised of oral evidence from GG, the store assistant, police officers and closed circuit television footage purportedly showing Ms Miers. Having given the nature of the anticipated evidence careful consideration, I remain persuaded by the opinions expressed by Ms Heinrich and Dr Ferris that Ms Miers’ lacks the cognitive capacity to follow the evidence in any meaningful manner.
I make the following findings relevant to Ms Miers’ capacity to follow the evidence:
·She is unable to follow ‘anything really’ said in the court room.[135]
·Her receptive communication skills are so impaired that she would not be able to follow the discussions and the question and answer format in which evidence is given.[136]
·Her lack of understanding would not be ameliorated by revision or summary of the evidence after it has been adduced.[137]
·It would not be possible for counsel to ascertain what Ms Miers did and did not understand about a particular passage or feature of the evidence.[138]
·Even if the evidence were presented in simple, concrete and descriptive language, Ms Miers would be unable to follow it. If the evidence were deconstructed and summarised for Ms Miers after it was given and instructions then sought from her, there could be no confidence that any response from Ms Miers indicated an understanding of the evidence and the instructions she is being asked to provide.[139]
·Ms Miers would be unable to question and seek clarification of the evidence.[140]
[135] T72.
[136] T11, 12, 49, 53, 60, 61, 71, 72.
[137] T12, 73.
[138] T19, 62.
[139] T68, 72.
[140] T19, 49.
I am satisfied that Ms Miers would be entirely unable to follow the substantial effect of the evidence, notwithstanding the relatively simple allegations of fact. I consider that even if Ms Miers is informed, after the evidence is given, of the substantial effect of the evidence, she is incapable of raising an objection to or disagreeing with the evidence in any meaningful way.[141]
[141] T60.
Conclusion
In reaching my conclusion as to ss 269H(b) and (c), I have also had regard to my observations of Ms Miers during the one and a half days the hearing occupied. Whilst I am cautious of placing too much weight on demeanour and presentation in this context, it was obvious to me when I regularly looked to the dock that Ms Miers was not following the proceedings at all and appeared to be completely unaware of what was transpiring. This struck me as significant given that the sole focus of the hearing was Ms Miers. There was no discernible appreciation on her part as to the nature or purpose of the inquiry being conducted. Indeed, as Ms Heinrich observed during her evidence, Ms Miers appeared to spend the hearing ‘doodling’ on paper.[142] Of course, the relevant question is not whether Ms Miers understood the inquiry into her fitness. Nonetheless, I consider her disposition was consistent with the description of her cognitive and intellectual deficits described by the experts.
[142] T61.
I am satisfied on the balance of probabilities that Ms Miers is unfit to stand trial pursuant to s 269H(b) and (c).
In accordance with s 269M(3), I record a finding to that effect.