R v Mitchell (No 2) - [2023] SADC 161

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MITCHELL (No 2)
[2023] SADC 161
Judgment of his Honour Judge Slattery
13 November 2023
CRIMINAL LAW - PROCEDURE
The defendant is charged with five counts connected with the use of carriage services for child pornography.
Whether the defendant is mentally fit to stand trial.
Held:
The defendant is not mentally fit to stand trial.
Criminal Code Act 1995 (Cth); Criminal Law Consolidation Act 1935 (SA); Crimes Act 1914 (Cth), referred to.

R v MITCHELL (No 2)
[2023] SADC 161

The accused is charged on information for arraignment dated 5 December 2022 with the following offences:-
Count 1:
Offence Details:
Use a carriage service for child pornography material, contrary to s 474.19(1) of the Criminal Code (Cth).
Particulars
On 15 October 2017 at Parafield Gardens or elsewhere in the State of South Australia, Ashley Scott MITCHELL accessed material using a carriage service, by using an Apple iPhone 7 Plus, the material being child pornography material.
Prescribed, Qualifying, Disqualification and/or Presumptive Disqualification Offence
This may be a ‘prescribed offence’ within the meaning of sections 5 and 38 of the Child Safety (Prohibited Persons) Act 2016
This may be a ‘disqualification offence’ within the meaning of sections 18A and 18U of the Disability Inclusion Act 2018
Count 2:
Offence Details:
Use a carriage service for child pornography material, contrary to s 474.19(1) of the Criminal Code (Cth).
Particulars
On 22 May 2019 at Parafield Gardens or elsewhere in the State of South Australia, Ashley Scott MITCHELL accessed material using a carriage service, by using an Apple iPhone 6S Plus, the material being child pornography material.
Prescribed, Qualifying, Disqualification and/or Presumptive Disqualification Offence
This may be a ‘prescribed offence’ within the meaning of sections 5 and 38 of the Child Safety (Prohibited Persons) Act 2016
This may be a ‘disqualification offence’ within the meaning of sections 18A and 18U of the Disability Inclusion Act 2018
Count 3:
Offence Details:
Use a carriage service for child pornography material, contrary to s 474.19(1) of the Criminal Code (Cth).
Particulars
On 26 May 2019 at Parafield Gardens or elsewhere in the State of South Australia, Ashley Scott MITCHELL accessed material using a carriage service, by using an Apple iPhone 6S Plus, the material being child pornography material.
Prescribed, Qualifying, Disqualification and/or Presumptive Disqualification Offence
This may be a ‘prescribed offence’ within the meaning of sections 5 and 38 of the Child Safety (Prohibited Persons) Act 2016
This may be a ‘disqualification offence’ within the meaning of sections 18A and 18U of the Disability Inclusion Act 2018
Count 4:
Offence Details:
Use a carriage service for child pornography material, contrary to s 474.22(1) of the Criminal Code (Cth).
Particulars
On 12 March 2020 at Parafield Gardens or elsewhere in the State of South Australia, Ashley Scott MITCHELL accessed material in the form of data held in a computer or contained in a data storage device and Ashely Scott MITCHELL used a carriage service to obtain or access the material.
Prescribed, Qualifying, Disqualification and/or Presumptive Disqualification Offence
This may be a ‘prescribed offence’ within the meaning of sections 5 and 38 of the Child Safety (Prohibited Persons) Act 2016
This may be a ‘disqualification offence’ within the meaning of sections 18A and 18U of the Disability Inclusion Act 2018
The defendant Mr Mitchell has not been arraigned and has not entered a plea to the charges. From the time of his first appearance on 30 April 2021, the Court was informed that in the opinion of his representation, the defendant was not fit to plead and he was consequently not fit to stand trial. On 5 September 2022, an election by counsel for trial by Judge alone was lodged at the Court. It was in the following form:-
It is appropriate to outline some of the background facts as they are described in the depositions. On 29 March 2019, the Australian Federal Police (AFP) received a referral that identified an Australian Facebook user uploading to an iPhone 7 material identified as child abuse material (CAM). This material was in turn downloaded to a Facebook platform. The defendant was identified as a relevant user of the phone. On 17 May 2019 the AFP received a further referral in respect of the same user uploading child abuse material. The email address of the user identified the name “Ashley.Mitchell”, the defendant. The home address of the defendant was identified, a warrant was obtained and the home of the defendant was searched. The search of the home occurred after the defendant initially attempted to evade the police by running back into his house.
During the search, the police identified a white and gold Apple iPhone 6s Plus; a Toshiba laptop; a white and gold coloured Apple iPod; a black and silver USB; and an Apple iPhone 7 plus. Examination of these devices disclosed images all of which included child abuse material. The internet browser history was searched and disclosed several thousand internet searches for child abuse material.
Count 1 on the information relates to the images depicting child abuse material on the Apple iPhone 7 plus; Count 2 relates to child abuse images found upon the apple iPhone 6s plus; Count 3 relates to child abuse material found upon Apple iPhone 6s plus; Count 4 relates to child abuse material found upon the USB; Count 5 relates to child abuse material found upon the Toshiba laptop; and Count 6 relates to 1,007 unique images depicting child abuse material located across the five devices. Mr Mitchell voluntarily participated in an interview with the police and suggested amongst other things that he forgot there was some CAM photos on his phone, and that he sent the material from Facebook to his gaming console. He made several statements about moving photos or saving them in a hidden folder so that he did not need to look at them anymore. He said that he kept images of pornography to provide as evidence to Facebook or to the police but he does not know how to save videos.
Mr Mitchell also told police that he had been added (apparently innocently) to a number of sites; he queried whether the police would take the matter further; he only kept the material because he forgot to delete it; and his only device was the Apple iPhone 6s plus. Later Mr Mitchell told police he had sent a video to a person named Conor but he had also sent photographs by accident and that he had not looked at the photos saved in the hidden album for a number of years.
From the outset, an issue for resolution by the Court was the fitness of Mr Mitchell to stand trial.
19 May 2021, the Court was informed that a report had been obtained from the psychologist Ms Jane Farrin of 17 December 2020. It was submitted that this was a report for s 269K(1) of the CLCA. That section provides:-
269K—Preliminary prognosis of defendant's condition
(1)     Before formally embarking on an investigation under this Division of a defendant's mental fitness to stand trial, a court may require production of psychiatric or other expert reports that may exist on the defendant's mental condition and may, if it thinks fit, itself have a report prepared on the defendant's mental condition.
(2)     If it appears from a report that the defendant is mentally unfit to stand trial but there is a reasonable prospect that the defendant will regain the necessary mental capacity over the next 12 months, the court may adjourn the defendant's trial for not more than 12 months.
(3)     If after the adjournment the court is of the opinion that the grounds on which the investigation was thought to be necessary no longer exist, the court may revoke the order for the investigation and the trial will then proceed in the normal way.
The Commonwealth then requested and were granted orders from the Court for the obtaining of a further reports in the context of the operation of Part 8A of the Criminal Law Consolidation Act (CLCA).
At page 16 of her report, Ms Farrin opined that Mr Mitchell was legally unfit to stand trial because he could not understand the court processes and his legal rights. He would be capable of providing a general account of his story about what happened but he would not be able to provide detailed instructions, the information he would provide would be limited, he is a poor personal historian and he does not demonstrate an understanding of what it means to plead guilty and not guilty and the likely consequences. He would struggle to cope with being cross examined; struggle to effectively answer questions; and struggle to follow the gist of legal proceedings and the course of evidence in a trial. He lacked the intellectual capacity to sufficiently comprehend information in the courtroom and the implementation of special support measures would not overcome his cognitive barriers and allow him to become legally fit. He has an intellectual disability for which there is no medical treatment. He would not become legally fit to stand trial during the next 12 months.
In a report of 30 September 2021, Dr Catherine Crouch, Psychiatrist informed the Court of her view that Mr Mitchell had the ability to instruct lawyers although it must be expected that this would take some time and patience on the part of legal representation. Giving evidence would be difficult for him and be anxiety provoking. This would have a further impact on his ability to remain engaged and focused. Questioning would need to be short with regular breaks, questions would need to be simple and language must also be simple.
Dr Crouch also opined as follows:-
‘Without the presence of formal neuropsychological testing, it is not possible to know where Mr Mitchell’s specific deficits lie or where his strengths, particularly around learning new information fall. The court may decide moving forward that further examination of these factors could be of benefit to assist with Mr Mitchell be actively part of his defence. Mr Mitchell is fit to stand trial if her recommendations around education and support are met.
Dr Emma Fitzgerald undertook neuropsychological testing of Mr Mitchell and prepared a report of 21 April 2022. Dr Fitzgerald opined that Mr Mitchell is unable to understand and respond rationally to the allegations on which a charge is based, and, for example, he does not understand the consequences of not contacting a lawyer and obtaining advice before police questioning. He does not understand the charge and will require extra explanation if there is complex information he is required to understand. With simple language, he may be able to instruct his lawyer. However, Dr Fitzgerald had significant concerns about his capacity to follow the course of proceedings given his intellectual disability.
Dr Fitzgerald assessed Mr Mitchell’s working memory index at 53 which is in the exceptionally low range. The exceptionally low range falls between an index of between 49 and 63. His verbal comprehension index was 66 which is at the first percentile and in the exceptionally low range. The exceptionally low range falls between an index of 62-73. His overall full scale IQ was 56 which is also in the extremely low range. He demonstrates a significant impairment in new learning and memory for both verbal and visual material consistent with his low level of intellectual functioning. He did not demonstrate frank executive functions and his performance highlighted his significantly slowed processing speed and his propensity to be overwhelmed by new material. Therefore, his processing speed and his working memory will be significantly impaired which means he will be very easily overwhelmed with lengthy or slightly complex questions.
Dr Fitzgerald opined that Mr Mitchell does not have the cognitive capacity to follow evidence, hold information in mind, remember it and then instruct his lawyer with regard to the evidence that he has heard. He does not have the capacity to give evidence and he could only manage ‘single arm’ questions which cannot be expected in light of the adversarial nature of a court process. These things cannot always be controlled. He is quite suggestible and would be prone to agreeing with the questions regardless of his thoughts on the matter.
Dr Fitzgerald opined that Mr Mitchell was not fit to stand trial.
Following the provision of that report, Dr Catherine Crouch provided a further report of 15 June 2022. In that second report, Dr Crouch opined that in view of the new information provided through the report of Dr Fitzgerald and following the thorough neuropsychological assessment which she had suggested in her first report, Mr Mitchell suffers from an intellectual disability. She said that the impairments he suffers will have significant impact in the courtroom. His working memory and processing speeds that are vital skills for following the course of proceedings, his skills to follow and understand complex trials were absent and his low intelligence will not allow him to adequately follow the evidence in the course of proceedings. He will therefore not be able to properly instruct his lawyer as a consequence. She then agreed with the findings of Dr Fitzgerald that he is unfit to stand trial. In a further report of 6 October 2022, Dr Crouch opined that he will not become fit to be tried within 12 months. He suffers from a mental illness and no treatment is available in a hospital.
The Commonwealth then obtained a further report from another psychiatrist, Dr Hoa Nguyen of 13 February 2023. Dr Nguyen had the benefit of reports from Ms Farrin, the three reports from Dr Crouch and the report of Dr Emma Fitzgerald. In his report, Dr Nguyen opined that upon the making of proper arrangements Mr Mitchell was fit to plead.
Section 269H CLCA provides:-
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.
Disordered mental processes include an impairment or disorder of the mind to receive, process or respond to information.
I have earlier summarised the content of the reports of Ms Farrin, Dr Crouch and Dr Fitzgerald as well as the contrary opinion expressed by Dr Nguyen. As a result of these conflicting medical opinions, it became necessary for the court to order an investigation of the mental fitness of Mr Mitchell to stand trial.
Section 269J of CLCA provides:-
269J—Order for investigation of mental fitness to stand trial
(1)     If there are reasonable grounds to suppose that a person is mentally unfit to stand trial, the court before which the person is to be tried may order an investigation under this Division of the defendant's mental fitness to stand trial.
(2)     The court's power to order an investigation into the defendant's mental fitness to stand trial may be exercised—
(a)     on the application of the prosecution or the defence; or
(b)if the judge considers the investigation necessary to prevent a possible miscarriage of justice—on the judge's own initiative.
(3)     If a court orders an investigation into the defendant's mental fitness to stand trial after the trial begins, the court may adjourn or discontinue the trial to allow for the investigation.
(4)     If a court before which committal proceedings for an indictable offence are conducted is of the opinion that the defendant may be mentally unfit to stand trial, the committal proceedings may continue, but the court must raise for consideration by the court of trial the question whether there should be an investigation under this Division of the defendant's mental fitness to stand trial.
Under s 269L, I may order a separate investigation of the question of the defendant’s mental fitness to stand trial before any other issue. In light of the differences in the opinions of the medical witnesses, I made an order for the separate trial of the question of Mr Mitchell’s mental fitness to stand trial. That hearing occurred on 13 November 2023 and proceeded under s 269M CLCA subparagraph A which provides:-
A—Trial of defendant's mental fitness to stand trial
(1)     The court—
(a)must hear relevant evidence and representations put to the court by the prosecution and the defence on the question of the defendant's mental fitness to stand trial; and
(b)may require the defendant to undergo an examination by a psychiatrist or other appropriate expert and require the results of the examination to be reported to the court.
(2)     The power to require an examination and report under subsection (1)(b) may be exercised—
(a)     on the application of the prosecution or the defence; or
(b)if the judge considers the examination and report necessary to prevent a possible miscarriage of justice—on the judge's own initiative.
(3)     At the conclusion of the trial of the defendant's mental fitness to stand trial, the court must decide whether it has been established, on the balance of probabilities, that the defendant is mentally unfit to stand trial and—
(a)     if so—must record a finding to that effect;
(b)     if not—must proceed with the trial in the normal way.
(5)     The court may, if the prosecution and the defence agree—
(a)dispense with, or terminate, an investigation into a defendant's fitness to stand trial; and
(b)     record a finding that the defendant is mentally unfit to stand trial.
As this is a Commonwealth offence, Part 1 B Division 6 of the Crimes Act (1914) (Cth) has application. I will return to that matter later in these reasons.
The defendant called in evidence Ms Farrin, Dr Crouch and Dr Emma Fitzgerald. The prosecution called in evidence Dr Nguyen. The evidence given by each witness was largely consistent with the content of the reports provided by them. Dr Farrin agreed that she has now had regard to the neuropsychological assessment of Dr Fitzgerald and she maintains her opinions. She confirmed that during consultations with Mr Mitchell, he did not appear to understand questions, he was a very poor historian and this indicated he had a significant memory impairment. There were inconsistencies within his responses but essentially he had real trouble responding to basic questions. She said no assessment has been made of Mr Mitchell’s adaptive functioning. This should be done. Ms Farrin was conscious that Mr Mitchell always lived at home with his parents, he has never lived independently, he is almost completely house bound, he is socially isolated but he still has some level of functioning. For example, he is able to buy items he wants, to catch public transport but that is not inconsistent with someone who has an intellectual disability.
Her opinion was that Mr Mitchell was not going to retain information based upon the formal testing and assessment results. He has a low ability to retain, understand and retrieve information. Even if he was asked a question and answered it he could not retain the information that he had provided.
In answers to questions from me, Ms Farrin said that there had been a number of individuals with an intellectual disability who had been able to undertake this type of offending. The results are very consistent across all measures. She said that Dr Fitzgerald is a very experienced assessor and neuropsychologist and would have known if someone was malingering or refusing to answer questions to the best of his ability.

In her evidence, Dr Crouch said that in measuring intellectual deficit, Dr Fitzgerald is most qualified to express an informed opinion.
In the assessment of Dr Crouch, the two key deficits were working memory and processing speed. Mr Mitchell has difficulties with learning new information but also being able to take in information, hold it in his mind, understand it, come back to it later whilst at the same time receiving more information. In a court process there are many layers of information being received and it will be profoundly difficult for Mr Mitchell.
Dr Crouch said that people who have an intellectual disability can still function at a quite reasonable level in certain aspects of their lives. They may be very street smart but in other areas have very significant deficits. Mr Mitchell is not without any capability but when it comes to following the course of proceedings, the complexity of the charges and the nature of the information he is going to have to absorb, process, and provide feedback on, he lacks the necessary capacity. He would most likely use expressions such as ‘I don’t recall’ or ‘I don’t remember’ when trying to answer questions when he really does not understand what is going on. He would have great difficulty testifying in his own defence at trial. Even if counsel asked really simple questions, there was a flow to the way a court proceeding occurs and in the end, that flow would overwhelm Mr Mitchell because he is not able to process, retain and understand information. A simple question may completely defeat him.
In her evidence, Dr Fitzgerald said that Mr Mitchell’s difficulty in following proceedings involves his deficient working memory and his information processing speed. In relation to Dr Nguyen’s report, Dr Fitzgerald raised some concerns about his digital span task which, on her assessment means that he would not be able to take in, process and understand information in a courtroom. In cross examination, Dr Fitzgerald went through the tests that she administered in her neuropsychological assessment. His score means only four out of one thousand people will score at that level or lower.
Dr Fitzgerald undertook a full neuropsychological assessment of Mr Mitchell. She administered the verbal comprehension test, the perceptual reasoning index and the working memory index test as well as the processing speed index test. She assessed Mr Mitchell’s memory, his ability to learn information with repetition and tasks around his executive functioning. She was satisfied that all of the results obtained accurately reflected his intellectual and cognitive functioning. She opined that he would not understand instructions given to him; he could not follow the course of the trial; he could not follow evidence; he could not follow procedure and he would be unable to properly instruct solicitors because of the deficiencies in his intellectual functioning. Language and conversation whether or not of a relatively complex nature is much harder for him to absorb. He is likely to miss bits and misinterpret what is being said because he will likely hear one bit, miss a bit and then hear another bit. It all becomes very confusing for him. His memory is very slow, he was overwhelmed by complex visual information and could only manage less complex visual information. All of that together meant that he just is not just deficient in one cognitive skill but was deficient in all cognitive skills. For example, in his interview with the police, some of the answers he gave to questions indicated that he did not understand the questions that were being asked of him.
Ms Fitzgerald understood the change of view expressed by Dr Crouch because, in neuropsychology, when the relevant tests are done it reveals much more information about a person’s cognitive capacities that a psychiatrist may not obtain when interviewing a patient. A psychiatrist might assess a person as having an intellectual disability but in particular circumstances be unable to measure the degree, the level of severity, or the extent of that disability. None of that can be properly measured unless the appropriate tests have been done.
Dr Nguyen affirmed the opinions which he expressed in his report of 13 February 2023. He agreed with Dr Fitzgerald’s assessments that Mr Mitchell had a mild intellectual disability. He is not totally familiar with the working memory test or the index memory test and so he could not interpret the results obtained by Dr Fitzgerald. He agreed that the neuropsychological testing provided a window into understanding Mr Mitchell’s intellectual functioning. In forming his opinion he placed weight onto how he uses his broader intellectual functioning in a more practical setting. Despite that view, he agreed that over time, people with intellectual disabilities can perform day to day tasks learned, usually, through repetition. He also agreed that people with intellectual disabilities who are presented with new circumstances and new information are less likely to be able to adapt to it. A criminal trial will, in particular circumstances, create real difficulties unless there was some form of compensatory strategy that could allow Mr Mitchell to participate in a meaningful way. That occurs in the background where Mr Mitchell would likely be at a higher stress level, have anxiety and have difficulty following the course of evidence. That stress might impair his ability to receive information and process it. In relation to his lifestyle, Dr Nguyen could not say what value Mr Mitchell placed on doing things such as entering employment, having different ranges of activities beyond those which are normal, exploring friendships and having intimate relationships. Those are common things that young adults would attempt. It was unclear to Dr Nguyen how much value Mr Mitchell placed upon those goals.
In re-examination, Dr Nguyen accepted Dr Fitzgerald’s assessment of the level of intellect of Mr Mitchell had been 56 on the full scale IQ result. He has not been also able to understand the questions put to him in the testing and because of his intellectual disability, he might have been at a disadvantage. Whatever assistance he would be given, the result would still mean he would sit within the mild intellectual disability range. It would be a challenge to accurately predict whether he could become fit within 12 months with such an intellectual disability because his impairment is relatively static. He agreed with Dr Fitzgerald’s finding that his disability is of a permanent nature.
I have considered and assessed all of this evidence and I am satisfied and persuaded on the balance of probabilities that although Dr Nguyen has expressed the view that Mr Mitchell is fit to stand trial, the opinions of Dr Fitzgerald which are supported by Ms Farrin and the psychiatrist Dr Crouch satisfy me, that Mr Mitchell would have significant difficulty understanding what was occurring in the trial, he would suffer from confusion, he would not understand what was happening in the trial and have difficulties with his working memory and his information processing speed. I am satisfied therefore, he will not be able to take in, process and then understand information being ventilated within a courtroom setting. I am satisfied of that position even if there were arrangements made to attempt to cater for his disabilities. I am therefore satisfied that he is unfit to stand trial. He will not be fit to stand trial within the next 12 months because his mental deficiencies are permanent.
s 20B of the Crimes Act 1914 (Cth) provide:-
20B Consequences of preliminary finding that person unfit to be tried
(1)     Where, in proceedings for the commitment of a person for trial of a federal offence on indictment, being proceedings begun after this section commences, the question of the person’s fitness to be tried in respect of the offence, is raised by the prosecution, the person or the person’s legal representative, the magistrate must refer the proceedings to the court to which the proceedings would have been referred had the person been committed for trial.
(2)     If the court to which the proceedings have been referred finds the person charged to be fit to be tried, the court must remit the proceedings to the magistrate and proceedings for the commitment must be continued as soon as practicable.
(3)     Where a court:
(a)     to which proceedings have been referred under subsection (1); or
(b)before which a person appears in proceedings for trial of a federal offence on indictment, being proceedings begun after this section commences;
finds the person charged unfit to be tried, the court must determine whether there has been established a prima facie case that the person committed the offence concerned.
(4) Where a magistrate refers proceedings to a court under subsection (1), the magistrate may order the person charged to be detained in prison or in hospital for so long only as is reasonably necessary to allow the court to which the person is referred to determine whether it will make an order under subsection (2) remitting the person to the magistrate, an order under section 20BA dismissing the charge or an order under section 20BB detaining the person in prison or hospital or granting the person bail.
(5) Where a court finds a person, other than a person in respect of whom proceedings have been referred to it by a magistrate under subsection (1), to be unfit to be tried, the court may order the person to be detained in prison or hospital for so long only as is reasonably necessary to allow the court to determine whether it will make an order under section 20BA dismissing the charge or an order under section 20BB detaining the person in prison or hospital or granting the person bail.
(6)     For the purposes of subsection (3), a prima facie case is established if there is evidence that would (except for the circumstances by reason of which the person is unfit to be tried) provide sufficient grounds to put the person on trial in relation to the offence.
(7)     In proceedings to determine whether, for the purposes of subsection (3), a prima facie case has been established:
(a)     the person may give evidence or make an unsworn statement; and
(b)the person may raise any defence that could properly be raised if the proceedings were a trial for that offence; and
(c)the court may seek such other evidence, whether oral or in writing, as it considers likely to assist in determining the matter.
Section 20B(3) requires, that if I find Mr Mitchell unfit to be tried, I must determine whether there has been established a prima facie case that he has committed the offences with which he has been charged.
In general, a prima facie case is one which on first appearances has sufficient evidence to prove the elements of the offence. Through his counsel Mr Mitchell has correctly conceded that a prima facie case has been established. In my opinion, there can be no doubt that this is a correct view having regard to the content of the depositions in the court file. Each of the phones and computers have been assessed, each contain the complained of material and each are connected directly to Mr Mitchell. The case is so strong that I think a jury would have no difficulty finding that the elements of the charged offences are proved beyond reasonable doubt and not just that there is a prima facie case.
S 20BA of the Crimes Act 1914 (Cth) provides:
20BA Upon determining prima facie case, court to dismiss charge or to determine fitness within 12 months
(1)Where the court determines that there has not been established a prima facie case that the person committed the offence, the court must, by order, dismiss the charge against the person and, if the person is in custody, order the release of the person from custody.
(2)Where the court determines that there has been established a prima facie case that the person committed the offence, but the court is of the opinion, having regard to:
(a)the character, antecedents, age, health or mental condition of the person; or
(b)the extent (if any) to which the offence is of a trivial nature; or
(c)the extent (if any) to which the offence was committed under extenuating circumstances;
that it is inappropriate to inflict any punishment, or to inflict any punishment other than a nominal punishment, the court must, by order, dismiss the charge and, if the person is in custody, order the release of the person from custody.
(3)Where the court orders that the person be released from custody, the person must be released accordingly.
(4)Where the court determines that there has been established a prima facie case that the person committed the offence, but the court does not dismiss the charge under subsection (2), the court must, as soon as practicable after making that first‑mentioned determination, determine whether, on the balance of probabilities, the person will become fit to be tried, within the period of 12 months after the day the person was found to be unfit to be tried.
(5)A court must not make a determination under subsection (4) unless the court has obtained, and considered, written or oral evidence from a duly qualified psychiatrist and one other duly qualified medical practitioner.
(6)Nothing in subsection (5) prevents a court from obtaining written or oral evidence from such other persons, bodies or organisations as the court considers appropriate.
Under s 20BA(4), where I have determined that a prima facie case has been established and I am not prepared to dismiss the charge under s 20BA(2) of the Crimes Act, I must as soon as practicable after making the first determination then determine whether on the balance of probabilities Mr Mitchell will become fit to be tried within a period of 12 months after the day that he was found unfit to be tried namely, 13 November 2023.
It is first necessary for me to decide whether I am prepared to dismiss these charges (viz s 20 BA(2). I am not prepared to dismiss these charges. They relate to conduct which is egregious, deviant and solecistic. The material to which Mr Mitchell took access is amongst the worst forms of perversion and its existence and use strikes hard at the fabric of society. This Court has heard from experts on so many occasions that pornography in all forms is a major public health crisis. It would be an affront to the public consciousness generally if the charges were dismissed.
I am satisfied from the evidence given by Ms Jane Farrin, Dr Crouch and Dr Fitzgerald that Mr Mitchell will not become fit to be tried within 12 months of 13 November 2023. Mr Nguyen did not need to address that question.
s 20BC of the Crimes Act 1914 (Cth) provides:
20BC Persons found by a court not to be likely to be fit within 12 months
(1)Where a court determines, under section 20BA, that a person who was found unfit to be tried will not become fit to be tried within 12 months after that finding, the court must, at the time of making that determination, also determine:
(a)whether the person is suffering from a mental illness, or a mental condition, for which treatment is available in a hospital; and
(b)if so—whether the person objects to being detained in a hospital.
(2)Where a court has made a determination under subsection (1), the court must:
(a)if the court has determined that the person is suffering from a mental illness, or a mental condition, for which treatment is available in a hospital and that the person does not object to being detained in a hospital—order that the person be taken to and detained in a hospital, or continue to be detained in a hospital, as the case requires; or
(b)otherwise—order that the person be detained in a place other than a hospital, including a prison;
for a period specified in the order, not exceeding the maximum period of imprisonment that could have been imposed if the person had been convicted of the offence charged.
(3)The Attorney‑General may, at any time, by order in writing, vary the hospital or other place of detention at which a person is detained under this section.
(4)Where, for urgent medical or security reasons, it becomes necessary to do so, an officer of the State or Territory in which a person is detained under this section may vary the hospital or other place of detention of that person but, where the officer does so, the officer must forthwith notify the Attorney‑General, in writing, of the variation and of the reasons for the variation.
(5)Despite subsection (2), the court may, if in the court’s opinion it is more appropriate to do so than to make an order under subsection (2), order the person’s release from custody either absolutely or subject to conditions to apply for such period as the court specifies in the order, not exceeding 3 years.
(6)The conditions may include:
(a)a condition that the person remain in the care of a responsible person nominated in the order; and
(b)a condition that the person attend upon a person nominated, or at a place specified, in the order for assessment of the person’s mental illness, mental condition or intellectual disability and, where appropriate, for treatment; and
(c)any other condition that the court thinks fit.
(7)Where a person has been released from custody subject to conditions, the person or the Director of Public Prosecutions may, at any time, apply to the court to vary those conditions.
(8)Where a court determines, under subsection 20BA(4), that a person who was found unfit to be tried will not become fit to be tried, within 12 months after the finding, the finding that there is, on the balance of probabilities, a prima facie case for the commission of the offence charged acts as a stay against any proceedings, or any further proceedings, against the person, in respect of the offence.
Under s 20BC, where I determine under s 20BA that Mr Mitchell is unfit to be tried and will not become fit to be tried within 12 months of 13 November 2023, I must also determine whether he is suffering from a mental illness or a mental condition for which treatment is available at a hospital.
The evidence satisfies me that Mr Mitchell is not fit to be tried as a result of the deficits which he suffers and which have been explained by Ms Farrin, Dr Fitzgerald and Dr Crouch. Each of Dr Fitzgerald and Dr Crouch expressed an opinion, according to their expertise, that Mr Mitchell was not suffering a mental condition which may require detention or hospitalisation. I am satisfied from their evidence that Mr Mitchell is not suffering from a mental illness or mental condition which would require him to be detained in a hospital.
Under s 20BC(5), if in my opinion, it is appropriate to make an order for the release of Mr Mitchell from custody either absolutely or subject to conditions to apply for a period not exceeding three years, I may release him on conditions. Those conditions may include, for example a condition that he remain in the care of a responsible person nominated in the order, that he attend upon a person nominated or a place specified for the assessment of his intellectual disability and where appropriate, for treatment and any other condition that I think fit.
In the exercise of my discretion, I am satisfied that it is appropriate to release Mr Mitchell on the basis of the conditions which consider should be imposed upon him. Those conditions are to be found within a release order which has been signed by me this day, 14 November 2023. Those terms are as follows:-
Order
Date of Order: 14 November 2023
Terms of Order
This order is in relation to the Defendant Ashley Scott Mitchell.
The Court:
1.   is satisfied at the conclusion of the trial of the Defendant’s fitness to be tried that the Defendant is unfit to be tried on the Information dated 5 December 2022.
2.   is satisfied that a prima facie case against the Defendant on the following counts on the Information dated 5 December 2022 has been established:
(a)1. Using a carriage service for child pornography material, contrary to s 474.19(1) of the Criminal Code (Cth.) (15 October 2017 at Parafield Gardens or elsewhere in the State of South Australia).
2. Using a carriage service for child pornography material, contrary to s 474.19(1) of the Criminal Code (Cth.) (22 May 2019 at Parafield Gardens or elsewhere in the State of South Australia).
3. Using a carriage service for child pornography material, contrary to s 474.19(1) of the Criminal Code (Cth.) (26 May 2019 at Parafield Gardens or elsewhere in the State of South Australia).
4. Possessing or controlling child abuse material obtained or accessed using a carriage service, contrary to s 474.22A(1) of the Criminal Code (Cth.) (12 March 2020 at Parafield Gardens).
3.is not satisfied on the balance of probabilities that the Defendant will become fit to be tried within a period of 12 months from the date of this order.
4.orders that the Defendant be released from custody subject to the conditions set out below which apply for a period of 3 years. (conditions of release cannot be imposed for a period exceeding 3 years (s 20BC(5) Crimes Act 1914)
Conditions of Licence
Supervision
1.   The Defendant be supervised by a Department for Correctional Services Community Corrections Officer (‘the Supervising Officer’) and the Defendant must obey their reasonable directions about non-medical matters.
2.   The Defendant be under the care of the Clinical Director (‘the Director’) of the South Australian Forensic Mental Health Service (‘the Service’) or a consultant psychiatrist nominated by the Director (‘the nominee’), and obey their reasonable directions about medical and psychiatric treatment and medication; and further that the Defendant be psychiatrically reviewed on a regular basis as directed by the Director or the nominee.
3.   If the Director or nominee thinks it appropriate, management of the treatment and monitoring of the Defendant’s mental health can be transferred to a local Community Mental Health Team, who shall case manage them in conjunction with the NDIS funded service provider and they must obey their reasonable directions about the treatment and monitoring of their mental health.
Residence (place of living)
4.   The Defendant must reside at an address nominated or approved by the Supervising Officer and must not change residence without prior approval from the Supervising Officer.
Programs
5.The Defendant must attend for assessment and, if assessed as suitable, go to and complete any:
a. psychiatric, psychological or medical assessment, treatment, counselling, or therapy programs, including for drug abuse;
b. educational, vocational or recreational programs;
c. intervention program;
d. programs and projects,
that the Supervising Officer reasonably directs.
Drugs and Alcohol
6.The Defendant must not use, possess (have), or consume:
a. alcohol
b. any drug, including any narcotic or psychotropic drug, that is not prescribed by a medical doctor registered in South Australia or legally available in another way, and then only at the prescribed or recommended dosage
and the Defendant must have any tests that are needed to check if they are obeying these orders as directed by the Supervising Officer.
The Defendant must sign all needed forms and obey all of the testing procedures.
Firearms
7.The Defendant is prohibited from possessing a firearm (gun of any sort), ammunition (both within the meaning of the Firearms Act 2015) or any part of a firearm.
8.The Defendant must submit to such tests (including testing without notice) for gunshot residue as may be reasonably required by the Supervising Officer or a member of the South Australian Police.
9.The Defendant must hand in any firearm, ammunition or any part of a firearm owned or possessed by them as soon as possible at a Police Station.
Association
10.The Defendant must not directly or indirectly contact, attempt to contact, associate with, go near or stay near a child or person under the age of 18 years unless they are with a person approved by the Supervising Officer.
The Defendant must sign all required forms and obey the directions of the Supervising Officer about the choice and approval of the approved person.
For the avoidance of doubt, this condition does not prohibit contact where it is necessary and incidental to the Defendant performing essential activities of daily living, for example, shopping at a supermarket.
11.The Defendant must not go or stay within 100 metres of any school, kindergarten, childcare centre, playground, public toilet or other places where children are regularly present.
12.The Defendant must not do any child related work, including paid or voluntary work with people under 18 years old or participate in organisations which provide recreational, social, educational or other services to people of that age, and must not apply for child related work.
Travel
13.The Defendant must not leave or attempt to leave South Australia for any reason without obtaining the written approval of the Supervising Officer at least seven (7) days prior to travel.
Other Conditions
14.The Defendant must be referred to a sexual offender treatment program such as Owenia House for assessment and, if recommended, must participate in that treatment program.
15.The Defendant may maintain no more than one laptop and one mobile device at any given time.
16. The Defendant must not access child-abuse material.
17.If requested by the Commonwealth, State law-enforcement agencies or the Defendant’s Supervising Officer, the Defendant must provide access to and consent to the inspection of any telecommunications or electronic storage device(s) capable of connecting to the internet, including any cloud storage accounts operated by the Defendant. This includes providing any necessary passwords, passcodes and biometric processes used to protect those devices and access to any cloud storage accounts.

As I was satisfied from the evidence that Mr Mitchell may not fully comprehend all of the terms of the release order that I have made, I have asked him to sign that document and acknowledge first that he has received it, and second that he has received an explanation of it from his counsel. For the avoidance of any doubt, this document records the conditions which I have decided to impose upon Mr Mitchell. Leaving to one side the existing circumstances, I would have otherwise required the execution of that document by Mr Mitchell. I rely upon s 20BC(8), and my finding that: Mr Mitchell was unfit to be tried and will not become fit to be tried within 12 months; there is on the balance of probabilities a proper prima facie case; and that finding acts as a stay against any proceedings of any further proceedings against Mr Mitchell in respect of these offences. If there is to be any further action against Mr Mitchell, then such further action will need to be commenced under the terms of a further court process and not the existing court process.
Mr Mitchell has now signed the release document. He has been given a copy of it and he is bound to observe its terms. I order that each electronic devices described in [1] hereof be forfeited to the Commonwealth.