R v Mu
[2021] ACTSC 144
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v MU |
Citation: | [2021] ACTSC 144 |
Hearing Dates: | 10 November 2020, 27 November 2020 |
DecisionDate: | 1 February 2021 |
ReasonsDate: | 22 July 2021 |
Before: | Loukas-Karlsson J |
Decision: | See [228] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Fitness to Plead – Intellectual Disability – General Principles – Presumption of Fitness – Determination on balance of probabilities – Criteria Considered – Accused found unfit to plead – Accused found unlikely to become fit to plead within 12 months |
Legislation Cited: | Crimes Act 1900 (ACT) ss 309, 311, 312, 315, 315A, 315C, 316, 334 Criminal Code 2002 (ACT) s 405 Magistrates Court Act 1930 (ACT) ss 88B, 90B |
Cases Cited: | Bailiff v The Queen [2011] ACTCA 7 Kesavarajah v The Queen (1994) 181 CLR 230 |
Parties: | The Queen (Crown) MU (Accused) |
Representation: | Counsel K Lee (Crown) B Morrisroe (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Boxall Legal (Accused) | |
File Numbers: | SCC 103 of 2020; SCC 104 of 2020 |
LOUKAS-KARLSSON J:
Introduction
On 17 June 2020, I determined that I was satisfied there was a real and substantial question about MU’s (the accused) fitness to plead and I reserved the question for investigation: s 314(3) Crimes Act 1900 (ACT) (Crimes Act). After the investigation into the accused’s fitness to plead on 10 November 2020 and 27 November 2020, I found on 1 February 2021 that the accused was unfit to plead and unlikely to become fit to plead within the next 12 months: ss 312(2), 315A(3) and (4) Crimes Act. These are the reasons for those findings.
Procedural Background
This matter commenced in the Magistrates Court when the accused was charged with an offence contrary to s 116(1) of the Emergencies Act 2004 (ACT) that on 4 January 2020, he lit a fire during a total fire ban (the summary offence). The maximum penalty for this offence is 2 years imprisonment and or 200 penalty units, being a fine of $32,000.
Upon the accused’s first appearance in the Magistrates Court on 4 January 2020, an order was made pursuant to s 309(1) of the Crimes Act requiring the accused be taken to an approved mental health facility for clinical examination to decide whether the accused needs immediate treatment or care because of mental impairment.
The matter returned to the Magistrates Court on 7 January 2020, when a plea of not guilty was formally entered and the accused was remanded in custody.
On 20 February 2020, Magistrate Campbell reserved the question of the accused’s fitness to plead and ordered the accused be examined by a psychiatrist pursuant to ss 314(1) and 315(2)(c) of the Crimes Act. The matter was to return to the Magistrates Court on 27 May 2020, following the examination by a psychiatrist.
On 30 April 2020, a fresh charge was laid for an offence contrary to s 405(1) of the Criminal Code 2002 (ACT) that on 4 January 2020, the accused intentionally caused a bushfire (the indictable offence). The maximum penalty for this offence is 15 years imprisonment and or 1500 penalty units, being a fine of $240,000.
A Psychological Assessment Report under the hand of Dr Danielle Clout dated 14 April 2020 (the Clout Report) was obtained on behalf of the accused. The Clout Report addressed Dr Clout’s opinion as to whether the accused was unfit to plead, having regard to the criteria set out in s 311(1) of the Crimes Act. The Clout Report raised concern as to whether the accused was fit to plead.
On 15 May 2020, the indictable offence was committed to the Supreme Court for trial pursuant to s 88B of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act 1930). On this occasion, the summary offence was transferred to the Supreme Court as a back-up offence to the indictable offence pursuant to s 90B of the Magistrates Court Act 1930.
On 17 June 2020, the matter came before me. I determined that I was satisfied that there was a real and substantial question about the accused’s fitness to plead and I reserved the question for investigation: ss 314(3) and 315(1) Crimes Act. I made a further order requiring the accused to be examined by a psychiatrist to facilitate the provision of a fitness to plead assessment: s 315(2)(c) Crimes Act.
A Forensic Psychiatrist Report under the hand of Dr Anthony Barker dated 28 August 2020 (the Barker Report) was provided to the Court and the parties in response to the request for a fitness to plead assessment. The Barker Report concluded that the accused was fit to plead.
In light of the conflicting expert opinions, on 11 September 2020 I listed the matter for hearing for the fitness to plead investigation on 10 November 2020. I further ordered that Dr Clout and Dr Barker were to be allowed access to the relevant material relied on by the other in preparation of their respective reports.
At the hearing on 10 November 2020, I considered that the court should be closed to the public while all of the evidence and submissions were heard for the protection of the accused’s privacy: s 315A(2) Crimes Act. I determined that there should be a suppression order for the name of the accused. This is why the accused is referred to as MU within the judgment and the names of any family members are also anonymised with initials to protect the identity of the accused.
The fitness to plead investigation was adjourned for further hearing on 27 November 2020. The parties then had the opportunity to provide written submissions.
Statutory Regime and Case Law
Division 13.2 of the Crimes Act sets out the statutory regime for fitness to plead. A person is presumed to be fit to plead: s 312(1) Crimes Act. On an investigation pursuant to Division 12.3, the presumption of fitness can be rebutted if it is established that the person is unfit to plead: s 312(2) Crimes Act. Determination of the question of a person’s fitness to plead is a question of fact and is to be decided on the balance of probabilities: s 312(3) Crimes Act. No party bears an onus of proof in relation to the question of fitness: s 312(4) Crimes Act. The investigation is not an adversarial proceeding and the Court is entitled to be inquisitive: Bailiff v The Queen [2011] ACTCA 7 (Bailiff v The Queen) at [16].
The criteria by which the Court must determine whether or not the presumption that a person is fit to plead is rebutted is set out in s 311 of the Crimes Act:
When a person is unfit to plead
(1) A person is unfit to plead to a charge if the person’s mental processes are disordered or impaired to the extent that the person cannot –
(a) understand the nature of the charge; or
(b) enter a plea to the charge and exercise the right to challenge jurors or the jury; or
(c) understand that the proceeding is an inquiry about whether the person committed the offence; or
(d) follow the course of the proceeding; or
(e) understand the substantial effect of any evidence that may be given in support of the prosecution; or
(f) give instructions to the person’s lawyer.
(2) A person is not unfit to plead only because the person is suffering from memory loss.
The requirements of fitness to plead were originally stated by Smith J in R v Presser [1958] VR 45 (R v Presser) at 48. This statement was then endorsed by the High Court in Kesavarajah v The Queen (1994) 181 CLR 230 (Kesavarajah v The Queen) at 245 (per Mason CJ, Toohey and Gaudron JJ) and at 249 (Deane and Dawson JJ). Section 311 adopts these statements of fitness into the ACT legislation: R v Monaghan [2009] ACTSC 61 (R v Monaghan) at [3]-[5]; Bailiff v The Queen at [24]; R v Fisher [2011] ACTSC 56; 210 A Crim R 199 (R v Fisher) at [3].
When conducting an investigation as to whether a person is fit to plead, the Court is to apply the criteria contained in s 311(1) in a “reasonable and common sense fashion”: Ngatayi v The Queen (1980) 147 CLR 1 (Ngatayi v The Queen) at 8; citing R v Presser at 48.
In R v Fisher at [29], Refshauge J set out the principles relevant to the Court’s determination of fitness to plead:
It is perhaps useful to identify in the present context what I extract from these authorities and the authorities on which they, in turn, have relied, and the principles I should apply. I do this particularly, but not limited to, the situation of an accused person with an intellectual disability. Those principles are:
1. The notion in s 311 of the Crimes Act of a person’s mental processes being disordered or impaired should not be read down so as to exclude the developmentally or intellectually disabled: R v Mailes [2001] 53 NSWLR 251 (at 296).
2. The fact that the disorder or impairment may cause an accused person to conduct his or her defence in a manner which the court considers is contrary to their interests does not, of itself, mean that they are unfit to plead: R v Taylor (1992) 77 CCC (3d) 551 (at 564-5).
3. That the disorder or impairment may produce behaviour that will disrupt the ordinary flow of the trial does not make the person unfit to plead: R v Taylor (at 564-5).
4. That the disorder or impairment prevents the accused from having an amicable, trusting relationship with counsel does not render the person unfit to plead: R v Taylor (at 564-5).
5. That an accused person would have presented a better defence had he or she been on medication not provided at trial is not relevant to the question of fitness to plead: R v Rivkin (2004) 59 NSWLR 284 (at 297; [298]).
6. The court is not required to search, fruitlessly, for a hypothetical accused with capacity, intellectual or otherwise, which might equip him or her with the ability to conduct a defence at a predetermined level: R v Rivkin (at 297; [299]).
7. That is to say, fitness to plead does not require an accused person to have a particular level of intelligence, legal knowledge or experience, or common sense: R v Bailiff (at 12; [44]).
8. The court may take into account the appearance and behaviour of an accused when he or she appears for trial: R v Khallouf [1981] VR 360 (at 364-5); Bailiff v The Queen (at [16]).
9. The court may also consider factors such as the conduct of the accused during any interview by the police, which includes consideration of the person’s understanding of and response to questions, the person’s prior experience with police investigations and with instructing lawyers, and any difficulties in his or her comprehension in the past: R v Stevens (2010) 107 SASR 456 (at 469; [60]).
10. The court can also take into account factors such as the attention span of the accused: R v McKitterick (2004) 36 SR (WA) 115 (at 119; [24]); R v Polanski [1999] NSWSC 433 (at [53]).
11. Lack of understanding of the proceedings can be shown by the accused, although showing he or she can follow the evidence of a witness, by reacting in a quite inappropriate way, disclosing a lack of appreciation of the bases of the evidence and its import: R v Polanski (at [60]).
12. Relevant evidence may be available from support persons for the accused or from lawyers who had represented him or her in the past, identifying difficulties in taking instructions, providing advice or acting: R v Stevens (at 463; [33]).
13. The tests set out in s 311 of the Crimes Act do not require a complete understanding of the proceedings and the issues, especially of substantive law, to which they are addressed: Ngatayi v The Queen (1980) 147 CLR 1 (at 8).
14. Many crimes are committed by persons of low intelligence, lack of insight into their behaviour and low cognitive skills, which does not of itself mean they are unfit to plead and the tests need to be applied in a reasonable and common sense fashion: Ngatayi v The Queen (at 8); R v Stevens (at 468-9; [58]).
15. The assessment needs to be conducted and the finding determined in the context of the actual charge preferred, for it is relevant that some charges are more complicated to understand than others: R v Stevens (at 468; [57]).
16. When an accused person is represented by counsel, that is a relevant factor to be taken into account: Ngatayi v The Queen (at 9); R v Dunne [2001] WASC 263 (at [14]).
17. The length of the trial is also a relevant factor to consider: Kesavarajah v The Queen (at 245-6).
18. Where steps can reasonably be taken to accommodate the difficulties of the accused, including adjournments, “one-on-one” assistance to follow the proceedings, insistence on brief, clear questions to the accused if he or she is examined on oath, an opportunity for the accused to narrate his or her version of events without interruption and the like the implementation of these will mean the accused is not unfit to plead: Kesavarajah v The Queen (at 246), R v Smith [2008] NSWDC 23 (at [36]); R v Tuigamala [2007] NSWSC 493 (at [22]).
19. That a Guardianship Order has been made in respect of an accused does not prevent an accused from giving instructions to his or her counsel nor render any such instructions ineffective or insignificant and, having been made on different criteria, is not determinative of the question of the accused’s fitness to plead: R v Bailiff (at 24-5;[102] to [110]).
Evidence
Oral Evidence
It should be noted that at the hearing, all witnesses who gave oral evidence were permitted to remain in court to hear the evidence given by the other witnesses.
During the course of the hearing, the Court heard oral evidence from:
(a) KHX, the accused’s mother;
(b) Dr Barker; and
(c) Dr Clout.
Each witness was asked questions about the accused’s general presentation and diagnoses, as well as the specific fitness to plead criteria. Their evidence will be set out below in subheadings in relation to each discrete fitness to plead criteria.
Admissibility of KHX’s Evidence
Prior to KHX giving evidence, counsel for the prosecution reserved his position as to the admissibility of KHX’s evidence and requested that the evidence of KHX be taken on the voir dire (T5.18-22). Counsel of the prosecution sought to consider whether KHX’s opinion about the fitness to plead criteria was inadmissible or whether it would simply be a question of weight and stated it would ultimately be a matter that would be addressed in submissions (T5.34-36).
Counsel for the accused did not take issue with the approach suggested by the prosecution and agreed that the admissibility of KHX’s evidence could be dealt with in submissions (T6.20-22).
KHX gave evidence at the hearing which addressed the accused’s background, as well as her opinion on the fitness to plead criteria. KHX’s evidence was based on her observations and experience of the accused as his mother and someone heavily involved in his day-to-day life.
Prosecution Submissions
Counsel for the prosecution confirmed that the prosecution did not object to the evidence of KHX in its entirety. It was not disputed that someone in the position of KHX, as the accused’s mother, would be able to give evidence that is relevant to the question of fitness to plead. The prosecution referred to R v BF (No 4) [2019] ACTSC 346 (R v BF (No 4)) at [4] which was a case where the defendant’s father gave evidence and had disputed factual matters referred to in the report of a psychiatrist.
The prosecution also referred to the observations made in R v Dashwood [1943] KB 1 (R v Dashwood) at 4:
…the court acts in such a case on information conveyed to it from any quarter. It does not matter whether the information comes to the court from the defendant himself or his advisers or the prosecution or an independent person, such as, for instance, the medical officer of the prison where the defendant has been confined.
The comments from R v Dashwood were relied upon by Penfold J in R v Bailiff [2010] ACTSC 54; 5 ACTLR 1 (R v Bailiff) at [48] in taking account the behaviour of the defendant in court during the hearing into the assessment of whether the defendant was fit to plead. The Court of Appeal in Bailiff v The Queen at [9]-[16] appeared to endorse Penfold J’s reliance on the comments made in R v Dashwood.
Counsel for the prosecution submitted that while it did not take issue with KHX providing a factual background about the accused, opinion evidence given about the particular fitness to plead criteria was in a different category. The prosecution noted that KHX was not an expert witness nor qualified to provide opinions about legal questions. It was accepted that part of KHX’s evidence was relevant and informative to the Court to understand the difficulties faced by the accused. The prosecution confirmed that KHX’s evidence of her observations of the accused’s interactions with his lawyers could be properly received by the Court and go towards consideration of his capacity to give instructions.
Counsel for the prosecution pressed that KHX could not give expert evidence or evidence of a legal conclusion in relation to the fitness to plead criteria. It was correctly submitted that only the Court could reach a conclusion in respect of the fitness to plead criteria upon the application of the relevant legal principles derived from case law and the statutory regime. The prosecution asserted that KHX’s conclusions as to legal questions ought to be treated with caution by the Court.
Consideration
Counsel for the accused acknowledged that KHX’s evidence did include her view on whether the accused was fit to plead having regard to the criteria set out in s 311(1) of the Crimes Act.
Counsel for the accused referred to s 315A(1)(a) of the Crimes Act which states that the court must hear any relevant evidence in an investigation into whether an accused is fit to plead.
In my view the evidence of KHX was highly relevant to the determination of the investigation as to whether the accused is fit to plead. Counsel for the accused noted that KHX is the only person with direct and ongoing experience of the accused throughout his life and she has assisted him with his comprehension of necessary tasks for daily living. KHX has used and trialled various communication and other techniques to assist her son.
Counsel for the accused submitted that there was no person in a better position to be able to assist the court to come to a view as to the adaptive processes that may or may not be of assistance to the accused in following the course of proceedings: s 311(1)(d) Crimes Act. In my view there was force to this submission.
Exhibits
Six exhibits were tendered at the hearing. They were as follows:
(a) Exhibit 1: Curriculum Vitae of Dr Barker.
(b) Exhibit 2: Statement of Acting Sergeant Troy Gordon dated 13 January 2020.
(c) Exhibit 3: Bundle of material relied on Dr Clout (including the Clout Report).
(d) Exhibit 4: Bundle of material relied on by Dr Barker (including the Barker Report).
(e) Exhibit 5: Affidavit of Emma Bayliss affirmed 26 November 2020 (the Bayliss Affidavit).
(f) Exhibit 6: Curriculum Vitae of Dr Clout.
MU’s Presentation and Diagnoses
Evidence
KHX
KHX gave evidence that when the accused was a small child, she began to notice developmental differences between him and his peers. On the accused’s third day of kindergarten, the teacher raised the possibility that the accused may be deaf. This “started the ball rolling” on tests and assessments for the accused (T9.14-39).
KHX recounted that the accused was assessed by Nadine Reynolds, a clinical psychologist at the age of five. The report of Nadine Reynolds was included within Exhibit 3 and had been provided to Dr Clout prior to the completion of the Clout Report. The report of Nadine Reynolds noted that the accused was well behind the levels of his peers and the results suggested that he suffered from a language based learning disorder.
KHX stated that Nadine Reynolds also assessed the accused when he was eight years of age and the second report was also included within Exhibit 3. KHX gave evidence that by this point, the issues faced by the accused were more pronounced and he had been assessed as eligible for attending an intensive support special needs school (T10.20-28). KHX confirmed that the accused was in the learning support unit in primary school, secondary school, and college (T10-12).
KHX also noted that around the advent of puberty and into his later teenage years, the accused began to have fantasies that were concerning, such as thinking he had a hole in his nose. KHX was of the view that the fantasies would increase the more the accused was smoking marijuana but maintained that the accused had exhibited fantasies prior to the uptake of marijuana (T12).
Dr Barker
Dr Barker did not conduct psychometric testing but noted that a review of the accused’s electronic mental health record from ACT health revealed various potential diagnoses, including: attention-deficit/hyperactivity disorder (ADHD), anxiety disorder, intellectual disability, post-traumatic stress disorder, autism spectrum disorder, pseudologica fantastica, schizophreniform psychosis, and cannabis induced psychosis. The Barker Report noted that it did appear to Dr Barker that the accused suffers from some degree of cognitive impairment.
Dr Clout
The Clout Report included the results of psychometric testing that Dr Clout had performed on the accused. The psychometric testing conducted by Dr Clout placed the accused’s general cognitive functioning as below 99.9 per cent of his peers, meaning that his cognitive ability falls within the profoundly impaired range. The psychometric testing further revealed that the accused’s working memory and processing speed were also profoundly impaired. The Clout Report opined that the accused lives with an intellectual disability, ADHD, and schizophrenia.
Dr Clout had interviewed the accused on his own at the AMC and also conducted a separate phone interview with KHX, due to the accused’s poor recall and comprehension. The Clout Report noted that the accused and KHX had outlined that the accused had an onset of delusions and hallucinations at approximately 17 years of age. The accused reported both audio and visual hallucinations. KHX informed Dr Clout that the accused’s delusions had typically been paranoid or grandiose in nature. Determination of the genesis of the accused’s delusions was beyond the scope of the Clout Report and counsel for the accused correctly submitted that it was not necessary for the Court to determine its genesis for the purposes of the fitness to plead investigation.
The Clout Report concluded that the accused’s impairments in respect of the conditions that he lives with are likely to represent lifelong impairments that are likely to require ongoing intervention and pharmacological intervention into the future. Dr Clout noted that even with appropriate pharmacological and psychological treatment, the accused is likely to require long-term support and assistance with skills including communication, participating in the community, and partaking in activities of daily living.
s 311 Criteria and Evidence
Upon receipt of the written submissions from counsel for the prosecution and counsel for the accused, it was clear there was no dispute between the parties that the accused was unfit to plead. Albeit the parties did not agree on whether the accused was unfit to plead on each criteria, but there was agreement between the parties that the accused was unfit to plead having regard to s 311(1)(e) and (f) of the Crimes Act.
Although the parties are now in agreement that the accused is unfit to plead, I had previously determined there was a real and substantial question about the accused’s fitness to plead. Ultimately that question must be answered by the Court, regardless of the agreement or otherwise of the parties. As I had reserved the matter for investigation, I was bound to satisfy myself of whether the accused was unfit to plead rather than merely accepting the joint position of the parties: R v Al-Harazi (No 5) [2017] ACTSC 61 at [32].
Understand the nature of the charge s 311(1)(a)
Evidence
KHX
When asked whether from her observations and knowledge of the accused did the accused understand the nature of the charge, KHX gave evidence that the accused knew the nature of the charge but only in a “very superficial, simplistic sort of way” (T16.15). KHX confirmed that the accused does understand on a basic level that he had been charged with lighting a fire (T16.17-18).
Counsel for the accused asked KHX whether the accused understood the particulars of the charge. KHX responded that after the last court mention, the accused and KHX had a conversation where the accused had said to her words to the effect of ‘oh, they’re – they’re blaming me for the fires in the Namadgi National Park’. KHX stated that the accused was convinced that the world believed he was responsible for the Namadgi National Park fire (T16.20-27). KHX was unsure of how the accused had come to this conclusion (T16.40-47).
Bayliss affidavit
The Bayliss affidavit set out the contact Ms Bayliss has had with the accused throughout her time representing him in these proceedings. The Bayliss affidavit set out conversations with the accused on 16 January 2020 and 22 January 2020 and concluded that it was Ms Bayliss’ impression that the accused understood the nature of the charge. On those occasions, the accused was aware that the police were alleging he had lit a fire in the Curtin area. The notes of Ms Bayliss from those meetings include “developmental delay – more FTP issue but understands charge”. The Bayliss affidavit set out that “FTP” is Ms Bayliss’ shorthand for fitness to plead.
The Bayliss affidavit set out that the committal took place on 15 May 2020 and that the accused was present via telephone. After court, KHX called Ms Bayliss indicating that the accused thought he had been charged with the bushfire caused by the defence helicopters. Ms Bayliss noted that a file note from her file recorded this conversation with KHX whereby Ms Bayliss informed KHX the accused was not being charged with the Namadgi National Park fire and KHX indicated she would settle the accused by passing on that information.
In relation to this criteria, Ms Bayliss deposed that she was initially of the view that the accused understood the charge in a basic way, namely, that he was alleged to have lit a fire in Curtin. Ms Bayliss opined that she was not of the view that the accused could provide the date of the alleged offence but noted she had never specifically asked him this question. The ultimate position of Ms Bayliss was that she had concerns about whether the accused understood the nature of the charge, in light of the phone call with KHX.
Dr Barker
The Barker Report noted that in Dr Barker’s interview with the accused, the accused had indicated that he had been charged with “arson” and considered that it was a “pretty serious” charge.
When giving evidence, Dr Barker maintained his opinion that the accused understood the nature of the charge (T57.18-19). When asked by counsel for the prosecution whether the accused knew what arson was, Dr Barker stated that it referred to the accused understanding that he’d been charged with lighting a fire (T58.2-3). Dr Barker was asked whether he recalled how he had elicited the response from the accused that arson was a “pretty serious charge”. Dr Barker stated “I think I asked him whether or not he thought that was a serious charge” (T58.16-17).
Dr Barker confirmed that his opinion about the accused understanding the nature of the charge had not changed after reading the Bayliss affidavit (T76.8).
Dr Clout
The accused had provided Dr Clout with a recount of the evening of the alleged offence, but Dr Clout had noted that it was difficult to understand. The accused had denied committing the offence or having any knowledge of how it had occurred. KHX had reported to Dr Clout that the accused had maintained to her that he had been “stitched up” in relation to the current matter
The Clout Report concluded that the accused expressed a rudimentary understanding of the nature of the charge, which included the separate elements of the charge. However, as both parties highlighted, it is important to note that Dr Clout interviewed the accused prior to the strictly indictable charge being laid. As such, Dr Clout opined that the accused understood the separate elements of what became the transfer charge, namely, lighting a fire and the general meaning of a fire ban.
Dr Clout maintained her opinion in respect of this criterion at the hearing (T91.12).
Prosecution Submissions
Counsel for the prosecution referred to the evidence of Dr Barker that the accused had indicated he had been charged with “arson” to assert that the accused had himself told Dr Barker the nature of the charge. It was submitted that the description of arson given by the accused appropriately described the nature of the indictable charge at hand.
In reference to the accused’s confusion about being charged for the Namadgi National Park fire, counsel submitted that the evidence in the Bayliss affidavit that KHX would “settle” the accused to clarify this situation demonstrated that any misunderstanding the accused had about the particulars of the charge could be corrected.
Counsel further referred to the Clout Report where the accused had discussed the evening of the alleged offence with Dr Clout, including providing a version and denying committing the offence. Counsel referred to the investigation in R v Bailiff at [52]-[53], where Penfold J relied on the outbursts of Mr Bailiff that raised factual matters related to the charge, which would have provided an explanation and potentially even a defence to the charge to be satisfied that Mr Bailiff had an understanding of the nature of the charge against him.
It was submitted that the Court would not be satisfied that the accused could not understand the nature of the charge.
Consideration
Counsel for the accused correctly submitted that there was competing evidence about whether the accused did in fact understand the nature of the charge he was facing.
The evidence was consistent that the accused understood he has been charged with lighting a fire. However, it was unclear whether the accused understood what fire and in what circumstances he had been charged with lighting a fire.
Reference was made by counsel to Dr Barker prompting the accused by directly asking whether or not the accused thought it was a serious charge to elicit the answer “pretty serious” to demonstrate that the accused’s understanding was superficial in that regard.
Counsel did not cavil with the proposition that the accused understands the rudimentary nature of the charge in relation to it involving the accused being charged with lighting a fire.
By reference to the accused’s misunderstanding he was being charged for causing the Namadgi National Park fire, counsel for the accused submitted that the evidence showed that the accused does not understand the particulars of the charge including which fire, at what time, and in what circumstances. I agree with this submission as it accords with my view of the evidence. I am satisfied on the balance of probabilities that the accused’s mental processes are disordered or impaired to the extent that the accused cannot understand the nature of the charge.
Enter a plea to the charge and exercise the right to challenge jurors or the jury s 311(1)(b)
Enter a plea to the charge
Evidence
KHX
KHX gave evidence that the accused has a very simple understanding of the distinction between guilty and not guilty, in that guilty would mean gaol and not guilty would mean no gaol. KHX did not believe that the accused would be able to understand all of the different plea options and the likely consequences of different plea options (T17.5-10).
KHX was queried whether the accused could understand that pleading not guilty would mean the matter would proceed to trial, evidence would be called, and a jury would determine whether the accused was guilty. KHX gave evidence that the accused might understand that concept on some days but there may be occasions where he may no longer comprehend it (T17.15-18).
Counsel for the accused asked KHX whether the accused could undertake a simple risk-benefit analysis as to whether to plead guilty or not guilty and if the accused could understand that pleading guilty could result in a reduction in sentence, but it would mean admitting he was responsible for the offence. KHX stated that the accused could understand that concept in “very, very basic terms” and would instead fixate on the possibility of getting out of gaol faster (T22.39-41).
KHX stated that the accused would understand that “by saying I’m guilty I’m saying I did it” (T23.1-2).
Counsel for the prosecution queried KHX as to whether the accused would understand what it means to plead guilty, if it was explained in a simple and slow way. KHX confirmed she believed the accused would understand (T40.8-10).
Bayliss affidavit
In the Bayliss affidavit, Ms Bayliss sets out a conversation she had with the accused via AVL on 17 January 2020, which was their first interaction. Ms Bayliss stated that on this occasion the accused denied the allegations.
The Bayliss affidavit made further reference to a conference that had taken place at the AMC between Ms Bayliss, the accused, and KHX on 18 February 2020. Ms Bayliss had attempted to explain the procedure, advantages, and disadvantages of a plea of guilty, a plea of not guilty, an application made pursuant to s 334 of the Crimes Act, not guilty by mental impairment and fitness to plead. Ms Bayliss noted that the accused was not able to engage with those concepts nor explain them back to her.
Ms Bayliss noted that on this occasion she attempted to explain to the accused that despite him denying the allegation, he could still be found guilty. Ms Bayliss attempted to explain reasons to plead guilty, including convenience, to stem a possibly more serious charge being laid or to enable expeditious sentencing proceedings. Ms Bayliss stated that the accused had a superficial understanding in that he understood that a plea of guilty meant that he admitted he started a fire and may spend more time in gaol. The accused could not grasp any further implication for a plea of guilty.
Dr Barker
The Barker Report opined that the accused appeared to have a reasonable understanding of the plea options that were available. The accused had indicated to Dr Barker that if he were found guilty then he would “probably get locked up again”, whereas if he was found not guilty, he would “walk free”.
When queried how Dr Barker had determined that the accused had a reasonable understanding of plea options, Dr Barker gave evidence that he had asked the accused what would happen to someone if they were found not guilty or if they were found guilty. Dr Barker stated that the accused seemed to understand that if he was found not guilty, he would be in the community and that if he was found guilty he would remain in custody (T58.26-31).
Dr Barker did however note that he had formed the impression the accused had difficulty in deciding between the plea options and was not sure which option he would want to pursue (T58.31-38).
Counsel for the accused asked Dr Barker whether the accused could understand a risk benefit analysis of pleading guilty or not guilty. Dr Barker stated he believed that the accused could understand the analysis if it was restricted to only a plea of guilty or not guilty being discussed (T85.1-5).
Dr Barker noted that the accused may have difficulty if more options were introduced into the equation and may struggle to comprehend the consequences of further options. Dr Barker did highlight that further plea options can be legally complex and even the average defendant may have difficulty navigating through these additional options (T84.8-13).
Dr Clout
The Clout Report opined that the accused appeared to present with a very basic understanding of the difference between a plea of not guilty and plea of guilty. Dr Clout noted that while the accused expressed confusion about his legal options and the impact of plea options, the confusion was around the difficulty of understanding the consequences of each plea option.
Prosecution Submissions
Counsel for the prosecution referred to R v Griffith [2008] ACTSC 77 where at [28(b)] Penfold J had observed that entering a plea requires the defendant to have the capacity to enter “a deliberate plea made with a recognition of its implications”.
The prosecution further referred to Egan v JG [2010] ACTSC 53 at [85]-[86] where Refshauge J had endorsed Penfold J’s proposition and further stated that:
… entry of a plea is not simply a question of whether the accused committed the crime or not.
The notion of being able to enter a plea is not merely the normal function of responding “guilty” or “not guilty” on arraignment.
In R v Monfries (No 2) [2011] ACTSC 205 at [32] Refshauge J further observed that the ability to enter a plea:
…includes, of course, an ability to weigh up evidence so as to be able to enter an appropriate plea or take advice from a lawyer about it, but it is not a demanding test.
Counsel for the prosecution referred to the evidence of Dr Clout that she was of the opinion that the accused had a “basic understanding of the difference between a guilty and not guilty plea” notwithstanding that he had some confusion around the likely consequences of each plea option. Whereas Dr Barker was of the opinion that the accused had a reasonable understanding of the plea options, including the likely consequences of remaining in custody if pleading guilty and being released into the community if he was found not guilty. It was submitted that what the accused had told Dr Barker demonstrated a sufficient understanding of the likely implications of a plea.
In reference to the discussion of other plea options such as not guilty by virtue of mental impairment, counsel for the prosecution submitted that this option would not appear to arise in the present matter. Counsel noted that the accused had continued to deny the allegation and that he had told KHX he had been “stitched up”, as referenced in the Clout Report. It was submitted that in those circumstances, the Court would not find that the accused could not enter a plea to the charge.
Consideration
Counsel for the accused referred to R v Fisher where it was held that in order to be fit to plead on this portion of the criterion, a person must be entering a deliberate plea made with recognition of the implications.
Counsel referred to the evidence of KHX that the accused may not understand that a plea of not guilty would mean going to trial and that the accused may be unable to grasp the consequences of a plea past the immediate future. Counsel further referred to the evidence of Dr Barker in cross examination that the accused may have difficulty in comprehending plea options that extend beyond guilty and not guilty.
The evidence was clear that the accused had a basic understanding of a plea of guilty and a plea of not guilty. Counsel for the accused however noted that the accused did not possess an understanding of the substantial effect of those plea options and further did not understand more complex concepts such as pleading guilty in the face of the evidence or pleading not guilty by way of mental impairment.
In my view, the accused’s base level of understanding as disclosed by the evidence did not give rise to the ability of the accused to enter a plea in such serious proceedings to the requisite standard. I am satisfied on the balance of probabilities that the accused’s mental processes are disordered or impaired to the extent that the accused cannot enter a plea to the charge.
Exercise the right to challenge jurors or the jury
Evidence
KHX
KHX gave evidence that the accused would be able to exercise his right to challenge if the process was explained to him and someone was sitting with him during the empanelment process. KHX did note that the accused may choose to challenge someone on an irrational basis, such as whether they were wearing an Adidas top. KHX was also unsure whether the accused would have the capacity to understand the number of challenges he could have and doubted his ability to undertake calculations (T17.42-46 and T18.1-2).
In cross examination, KHX confirmed that the accused would have the ability to challenge jurors if the process was slowed down and that he would listen to his legal representatives’ advice on potential challenges so long as he trusted them (T42.44 and T43.2-3).
Bayliss affidavit
In the Bayliss affidavit, Ms Bayliss noted that she could not assist the Court with information in relation to this consideration but did note that she anticipated that the accused would be able to identify people that he thought did not look “nice”.
Dr Barker
Dr Barker expressed in the Barker Report that the accused appeared capable of exercising the right to challenge jurors or the jury, if he was to be assisted by a legal representative to do so.
At the hearing, Dr Barker was asked whether the accused would have the ability to indicate to his legal representative or a support person that he did not like the look of a potential juror during empanelment. Dr Barker gave evidence that if the accused had a strong preference, he may indicate this. Otherwise, Dr Barker suspected that the accused would rely on his lawyer to decide whether to challenge potential jurors (T58.46 and T59.1-2).
Counsel for the prosecution further asked Dr Barker whether the accused would be able to communicate to his lawyer that he thought a potential juror did not like him. Dr Barker stated that he was not sure if the accused could communicate this and did not know whether this would be a strong enough motivation for the accused to pass the information on to his legal representative. Dr Barker noted that the accused may be able to communicate this if the person was someone that he knew previously and he already knew that the person did not like him (T59.12-15).
Dr Barker gave evidence that he thought the accused did have the capacity to follow legal advice, if it was assumed that it would be explained to the accused slowly and in simple terms (T59.18-19).
Counsel for the prosecution referred Dr Barker to the Clout Report and asked Dr Barker to comment on Dr Clout’s view. Dr Barker noted that the difference in opinion could be that Dr Barker was of the view that the accused could exercise his right to challenge jurors if he was assisted by his lawyers whereas Dr Clout had noted that the accused could not do so independently (T60.2-8).
In respect of Dr Clout’s view that the accused did not possess the requisite processing speed to challenge jurors in an appropriate timeframe, Dr Barker noted that this could potentially be addressed by the process of empanelment being greatly slowed down (T60.20).
In cross examination, Dr Barker was asked what his assessment that the accused could challenge jurors was based on. Dr Barker gave evidence that the opinion was informed by his own understanding of what is required to be able to challenge jurors and that a person does not necessarily need to have a sound or rational reason to challenge a juror. Dr Barker noted that he was of the view that the accused was probably capable of forming an impression as to which people he may prefer or not prefer to be on the jury (T83.9-15).
Counsel for the accused provided Dr Barker with an example whereby there are eight challenges from however many people are in a jury pool and that in the example there would be 50 people in the jury pool. Dr Barker was asked whether the accused would understand that he only has the possibility of a challenge in relation to eight of the 50 people and that he can only exercise the challenge once one of those people’s numbers would be called from the box. Dr Barker was of the view that even an average defendant would not fully understand the process of challenging jurors until it was explained to them and even still, most would be guided by their legal representative’s recommendations. Having regard to the guidance offered by a legal representative, Dr Barker was of the view that the accused would be able to challenge jurors the same as any other defendant (T83.25-30).
Dr Clout
In the Clout Report, Dr Clout expressed the opinion that the accused is unlikely to have the capacity to exercise his right to challenge jurors. At the hearing, Dr Clout noted that the accused is unlikely to have the comprehension skills to understand when a challenge may be warranted, or the processing speed to be able to do this in an appropriate timeframe (T100.14-18).
In cross examination, Dr Clout was asked whether the accused would be able to challenge jurors if the process of empanelment was greatly slowed down and the accused was allowed time to confer with his legal representatives. Dr Clout confirmed that such a slowing down would address the processing speed issue, if it was coupled with the empanelment being conducted with limited people in the room (T100.21-22).
Dr Clout noted that she had conducted hypothesis testing with the accused by asking him questions such as “what would you do if you recognised a friend’s parent that didn’t like you?” and “what if you did recognise someone?”. Dr Clout stated that the accused had struggled with these scenarios but conceded that she did think the accused could follow legal advice for the eight peremptory challenges (T100.31-34,38-45).
Prosecution Submissions
Counsel for the prosecution referred to R v Steurer [2008] ACTSC 141 where Penfold J made the following observations about this aspect of the criterion at [41]:
The process of challenging jurors without cause is not necessarily a rational process for any accused person, and will often be influenced by beliefs that, while not delusional, are not particularly well-founded.
In R v Bailiff, Penfold J also stated at [60] and [119(b)]:
In general terms it may be rational for an accused person to try to assess whether a potential juror is likely to be more or less sympathetic to him or her, but a rational basis for assessing this, especially given the very limited information that an accused person in the ACT has about potential jurors at the time the jury is empanelled, is in most cases almost impossible to identify.
…
This [aspect of s 311(1)(b)] does not require that the person could articulate rational grounds for deciding whether to challenge a particular juror.
In R v BF (No 4) at [22] Penfold J observed:
There is, generally, little or no science involved in deciding whether or not to challenge a potential juror, and to the extent that there is anything approaching science in such circumstances, it is almost certainly something on which an accused person’s lawyer would be able to advise rather than something on which the accused person would be able to advise the lawyer.
The expert evidence received in R v BF (No 4) made clear that the defendant understood that he would not want anyone on the jury who he thought would dislike him for any reason: at [23]. Penfold J determined at [23] that she
…could not see any reason to conclude that his gut reaction on that topic would be any less accurate than that of any other accused person. If there was a suspicion that a particular potential juror would dislike or distrust BF for a rational reason not otherwise obvious to him, he should have been able to rely on his lawyer, or perhaps his support person or mentor, to point that out, and to advise him accordingly.
Counsel for the prosecution submitted that if the process of empanelment was to be slowed down and the accused was to be provided with appropriate support, he is likely to have the capacity to challenge jurors.
Consideration
Counsel for the accused submitted that the evidence appeared to disclose that with appropriate support, time, and simplification, the accused may have the capacity to challenge jurors. In my view this submission is soundly based on the evidence. I am not satisfied on the balance of probabilities that the accused’s mental processes are so disordered or impaired to the extent that the accused cannot exercise the right to challenge jurors or the jury. I do however note that s 311(1)(b) is a two-pronged criterion and as I found the accused cannot enter a plea to the charge, the presumption of fitness contained within s 312(1) of the Crimes Act is rebutted and I am satisfied that the accused is unfit to plead having regard to this criterion.
Understand that the proceeding is an inquiry about whether the person committed the offence s 311(1)(c)
Evidence
KHX
KHX gave evidence that the accused would understand on a “very superficial level” that the proceeding would be an inquiry into whether or not he committed the offence (T18.25-6).
Bayliss affidavit
At the conference that took place at the AMC between Ms Bayliss, the accused, and KHX, Ms Bayliss noted in the Bayliss affidavit that she had attempted to explain the concept of fitness to plead to the accused. Ms Bayliss stated that it became immediately apparent that the accused was not following during the explanation.
Ms Bayliss further noted that on 20 February 2020, she first appeared in the Magistrates Court in relation to this matter and raised her concerns about the accused’s fitness to plead. Ms Bayliss explained to the accused that the enquiry into fitness as “checking if you are well enough to go through the Court process”. Ms Bayliss stated that she was certain that the accused did not understand the procedure but appeared content with a superficial understanding that the Court must decide if he is well enough to go to court and that the process will take a long time.
Ms Bayliss noted that since the accused’s remand in custody from 5 September 2020, she had attempted to discuss a strategy around his bail applications, as he had been denied bail twice previously. Ms Bayliss attempted to explain to the accused that a further application required a change in circumstances or fresh evidence relating to bail. Ms Bayliss noted that the accused would regularly contact her asking how “bail is looking”. Ms Bayliss was of the view that the accused forgot or could not comprehend the additional threshold was required to be met prior to the third application.
The Bayliss affidavit confirms that Ms Bayliss believes that the accused is aware that criminal proceedings when he has pleaded not guilty are about deciding whether he committed the offence. Ms Bayliss noted that she was of the view that the accused did not understand the concept of bail and his fitness to plead.
Dr Barker
In the Barker Report, Dr Barker documented that the accused had indicated he had attended court on three occasions previously. The accused had also informed Dr Barker that he had watched the television programme “Judge Judy” on approximately 100 occasions. The accused had indicated to Dr Barker that the purpose of the proceeding was to “see if I did it or not”.
When referred to the Bayliss affidavit by counsel for the prosecution, Dr Barker noted that he did not believe Ms Bayliss’ concerns about the accused’s ability to understand the concepts of bail and fitness to plead were specifically required concepts that went towards the accused’s fitness to stand trial (T76.15-19).
In cross examination, Dr Barker agreed with counsel for the accused that having watched “Judge Judy” many times is a rudimentary understanding of the court process (T83.34). Dr Barker noted that the accused saying how often he had watched “Judge Judy” demonstrated familiarity with some of the processes that occur in court, rather than providing a sound understanding of the law (T83.36-38).
Dr Clout
In the Clout Report, Dr Clout noted that the accused was unable to verbalise his understanding about the role of the court or court proceedings. Dr Clout opined that in the event of a trial, the accused may be able to understand that the trial is to determine whether he committed the offence, if the accused was equipped with appropriate support to do so.
At the hearing, Dr Clout gave evidence that she would have concerns about the accused’s capacity to understand the proceedings where an inquiry to determine whether he committed the offence, if he was under stress. Dr Clout stated she would have concerns for the accused “on a bad day” but noted that depending on his presentation and with appropriate support, the accused could understand (T91.19-22).
Consideration
In R v Monaghan at [28(c)] Refshauge J found that the presumption that a defendant is fit to plead would not be rebutted on this criterion even if the defendant’s understanding was only at a “very rudimentary level”. In R v Fisher at [52] Refshauge J made a similar finding in respect of a defendant who had a “basic understanding”.
Counsel for the prosecution agreed with the submissions on behalf of the accused that the evidence showed that with support, the accused could understand on a basic level that the proceedings were about whether he committed the offence.
It was reasonably uncontroversial on the face of the evidence that the accused could, with appropriate support, understand on a basic level that trial proceedings were about whether or not he committed the offence. I am not satisfied on the balance of probabilities that the accused’s mental processes are disordered or impaired to the extent that the accused cannot understand that the proceeding is an inquiry about whether the accused committed the offence.
Follow the course of the proceeding s 311(1)(d)
Evidence
KHX
KHX gave evidence that she did not think the accused would be able to follow the course of the proceeding, even with support and breaks (T20.27) When asked by counsel for the accused why this was her view, KHX stated that the accused has always had difficulties following the course of anything and cannot extend beyond the immediate timeframe (T20.29-31). KHX stated that “as far as these proceedings go, I firmly believe he will not be able to follow the detail or complexity of something like this” (T28.13-15).
KHX was also asked whether he would be able to follow that Witness A could give oral evidence, then Witness B could give oral evidence, and the combination of that evidence could lead to a conclusion. KHX stated that if the accused was talked through the evidence of each witness, he would be able to follow but he would not be able to articulate the evidence (T20.47 and T21.1-2).
Counsel for the accused was asked whether the accused could understand the parts of a trial, being that the prosecution would call witnesses, the witnesses would give evidence, counsel for the accused would challenge part of that evidence. KHX stated that the accused would “definitely not” understand the mechanisms of a trial (T23.15).
In cross examination, KHX was asked whether the accused could follow the proceeding if it was broken up into its most rudimentary building blocks. KHX gave evidence that it would assist the accused to follow each individual building block, but that the accused lacked the capacity to piece all of the blocks together (T40.22-23).
Counsel for the prosecution asked KHX whether the accused’s ability to follow the proceeding would be assisted if the court process was slowed down and broken up into different portions to allow the accused time to absorb information about what step of the proceeding had been completed. KHX stated this would not assist as the accused cannot absorb information and that there were also issues of the accused simply agreeing that he understood because he wanted to get out of the situation (T43.14-20).
KHX gave evidence that if measures were undertaken to adjust the court proceeding so that the accused could follow, such as breaks and explaining to him the different parts of what was happening, her confidence would be increased that he could follow (T43.23-25).
Counsel for the prosecution asked KHX whether it was her understanding that it would be of benefit to the accused if he was found unfit to plead. KHX gave evidence that she was terrified both of the accused being unfit to plead, as well as the possibility he was fit to plead. KHX agreed that she wanted the process to be fair to the accused so that he could understand it to the best of his ability and that if that could occur via various mechanisms, she would not have a difficulty with it (T44.17-26).
Bayliss affidavit
In the Bayliss affidavit, Ms Bayliss recounted that throughout her conversations with the accused, he has had immense difficulty understanding concepts. Ms Bayliss noted that this occurred notwithstanding he was in circumstances that gave him the freedom to say anything, was in the constant company of his mother and his solicitor and was regularly encouraged to ask questions.
In respect of the conference that took place at the AMC on 18 February 2020, Ms Bayliss noted that she had attempted to explain various procedures orally, with diagrams, pausing regularly, asking KHX for input and assistance, and asking the accused to explain processes back to her. Ms Bayliss stated that the accused was not able to engage with the concepts nor explain them back to her, even when using different strategies and consulting KHX.
Ms Bayliss noted that she was extremely concerned about the accused following the proceeding in court. Despite making many attempts at explaining concepts differently and in a slow pace, Ms Bayliss was concerned that any potential safeguards had not improved the accused’s comprehension. Ms Bayliss was further concerned that with the added stress of a formal courtroom, robed counsel, and potential cross examination, the accused’s already diminished capacity to follow the course of the proceeding would be further disadvantaged.
Dr Barker
In the Barker Report, Dr Barker noted that when the accused was asked whether he would be able to follow the course of the proceeding, the accused responded “sort of”. Dr Barker noted that the accused had been generally able to follow the course of the psychiatric interview. However, the accused did have difficulties with comprehension at times, particularly towards the end of the interview when he became fatigued. Dr Barker noted that the difficulties with comprehension were generally able to be overcome with elaboration and simplification.
The Barker Report referred to the case of R v Tuigamala [2007] NSWSC 493 (R v Tuigamala) at [22] which noted the recommendations of Associate Professor Hayes for the defendant in that matter so that the defendant could follow the course of the proceeding. Dr Barker opined that measures that could enhance the accused’s ability to follow the proceeding in the present matter could include: questions posed to the accused are clear and succinct; avoidance of complex questions; the accused should be allowed to narrate his version of events with as little interruption as possible; the accused should be provided sufficient time to respond to a question, and not be presented with a second question prior to respond; and unclear responses should be clarified to verify that the accused understood the question.
The Barker Report also noted that frequent explanations from the accused’s legal representatives would be of assistance to enhance the accused’s ability to understand the court proceeding and follow along accordingly. Dr Barker noted that given the accused experienced fatigue during the psychiatric interview and it appeared to impact negatively upon his level of cognitive functioning, Dr Barker recommended that frequent breaks should be utilised to enhance the accused’s ability to be an effective participant in the proceeding. Breaks at the end of every hour were proffered as an example.
Counsel for the prosecution asked Dr Barker what the key differences between his view of the accused’s fitness to plead and the view of Dr Clout. Dr Barker noted that that his view was the accused would be able to follow the course of the proceeding, as long as accommodations were made to enhance his ability. Dr Barker stated that his reading of the Clout Report was that Dr Clout was of the opinion that the accused would not be able to follow the course of the proceedings because measures were not already in place to facilitate this. Dr Barker noted he thought both himself and Dr Clout shared the same view, but were just looking at the same issue from different angles (T56.38-44).
During examination in chief, Dr Barker noted that during the hearing he had noticed that the accused had appeared to have deteriorated and was fatigued. Dr Barker remarked that the accused had been leaning back and closed his eyes. Dr Barker noted that this behaviour would have implications for how long the accused would be able to sustain his attention in any trial proper. Dr Barker expanded on his recommendation in the Barker Report as to frequency of breaks but noted that regard should be given to the entire length of the proceeding over the course of the day (T56.23-34).
Dr Clout
In the Clout Report, Dr Clout opined that she considered it unlikely that the accused would have the capacity to follow the course of the proceeding in light of his significant deficits with respect to comprehension, communication, working memory, and processing speed. Dr Clout noted that the accused would require an extensive level of support to understand even basic aspects of the proceeding due to his impairments in understanding communication. Dr Clout noted that such support would need to include modification of language, repetition of points, and a substantial slowing of the pace of the proceedings.
Dr Clout gave evidence that she would still have concerns about the accused’s ability to follow the course of the proceeding, depending on the accused’s functioning at the time (T91.31-32).
Counsel for the prosecution asked Dr Clout questions about the accused’s understanding of the psychological assessment she had conducted with him at the AMC. Dr Clout gave evidence that the accused struggled at times both with the interview and with the psychometric tests. When asked whether the slowing of the pace and recounting concepts could address these issues, Dr Clout noted that such measures did not sufficiently assist on the day she saw the accused at the AMC (T98.38-43). Dr Clout noted that even ‘on a good day’ the accused would need measures such as breaking down the process and proceeding slowly (T98.47).
Counsel for the prosecution asked Dr Clout whether the accused would be able to follow the course of the trial proceeding if it was clearly broken down into different stages. Dr Clout confirmed that she thought the accused would have a rudimentary understanding of empanelment (T102.7). Dr Clout stated that she thought the accused could be supported to understand what the ‘openings’ of the trial were, but doubted that he could follow the opening statements themselves and could only understand at a basic level that the lawyers were telling the judge and the jury, or a single judge, what the case was about (T102.10-19). Dr Clout also agreed that the accused could understand that the next stage would be people giving evidence and closings, if he was told “this is the end of this part” (T102.22-30). Dr Clout stated that the accused could understand the role of a judge deciding if he was guilty and believed this could be extrapolated to a jury (T102.33-35).
In re-examination by counsel for the accused, Dr Clout maintained that she would still have concerns about the accused’s capacity to meaningfully understand each stage of the proceeding, even if it was clearly broken down in the format as outlined by counsel for the prosecution (T104.4-6).
Consideration
In R v Presser at 48 Smith J stated that this criterion requires a defendant:
…to be able to follow the course of the proceedings so as to understand what is going on in a general sense, though he need not, of course, understand the purpose of all various court formalities.
In R v Bailiff at [67] and [119(d)] Penfold J observed
s 311(1)(d) seems to me to refer to the accused’s ability to understand in general terms the sequence of events in the trial, and the purpose of the procedures being followed or the material being dealt with at each stage of the trial.
…
The person needs to understand what is going on in court in a general sense, but need not understand the purpose of all the various court formalities (Presser at 48). A view that the proceedings of the court are “gobbledygook” or “jargon”, a lack of knowledge of legal terminology, or an admission by the person that he sometimes sits in court and lets people talk without absorbing anything, does not render the person unfit to plead (Steurer at [15] and [16]). The fact that a person’s mental disorder may produce behaviour which will disrupt the orderly flow of a trial does not of itself render that person unfit to plead (Eastman at [26] and [27]).
In R v Fisher at [53], Refshauge J was critical of the expert evidence that stated that the defendant “was not able to understand legal language” and that he “often did not appreciate at any comprehensive level what was being said”. His Honour continued:
The required understanding is more basic: it is about witnesses giving evidence, counsel addressing, the judge summing up and the jury deciding the verdict. It is not necessary to understand legal language, though the concepts they represent need sometimes to be explained and understood.
In R v Monaghan (No 2) [2011] ACTSC 62 (R v Monaghan (No 2)) at [19], Refshauge J made the following observations:
In my view, the course of the proceedings encompasses the process of the trial from arraignment (where, of course, the understanding of the plea of guilty is encompassed in s 311(1)(b) of the Crimes Act), to the various participants in the trial and their functions, such as the judge, the jury (if there is one), the prosecution and defence counsel and the witnesses, to the verdict. He should understand that evidence is given by them (though the understanding of the substance is encompassed within s 311(1)(e) of the Crimes Act), but perhaps no more than how they do so, namely that they will tell what happened.
It is accepted in the relevant case law that the Court has the ability to implement special measures to assist a defendant to follow the course of the proceedings: Kesavarajah v The Queen Mason CJ, Toohey and Gaudron JJ at 246 and Deane and Dawson JJ agreeing at 249; R v Monaghan (No 2) at [86]; R v Tuigamala at [22]; and R v Smith [2008] NSWDC 23 (R v Smith) at [36].
In R v Monaghan (No 2) at [87]-[91], Refshauge J made reference to the provision of adjournments to allow the defendant’s counsel to discuss the proceedings with him as they progressed, as well as the ability of the trial judge to slow the pace of the proceedings as required.
In R v Smith Norrish DCJ noted at [36] that the proceeding could be altered to allow the accused during the hearing to obtain “one-on-one” assistance to follow the proceeding and that suitable breaks and adjournments could be provided to assist the accused to digest, collate or synthesis the evidence given in the trial.
The cases make it clear that the fact that a defendant is legally represented is a relevant factor in determining this criterion: R vMonaghan (No 2) at [25]; Ngatayi v The Queen at 8-9; R v Dunne [2001] WASC 263 (R v Dunne) at [14].
Counsel for the prosecution submitted that the support measures suggested by Dr Clout would all be able to be provided to assist the accused in the present matter. In addressing what Dr Clout said in re-examination, it was submitted that in light of R v Bailiff at [30], the accused did not need to “meaningfully understand” each part of the proceeding.
It was submitted that on the evidence, the Court would not be satisfied that the accused could not follow the course of the proceeding, if the appropriate supports were to be provided and the trial process was modified in the ways suggested by Dr Clout and Dr Barker.
Counsel for the accused noted that there had been competing evidence in the hearing as to whether or not the accused would be able to follow the course of the proceeding. Counsel made further reference to the results of the psychometric testing Dr Clout had undertaken on the accused. While acknowledging the evidence of Dr Barker that the accused could follow with appropriate accommodations, counsel ultimately submitted that the accused could not follow the course of the proceeding in light of his attention, comprehension, and processing difficulties.
In my view, on the evidence, I am not satisfied that the accused could not follow the course of the proceeding if the appropriate supports were provided, and the trial process was modified as suggested by Dr Barker and Dr Clout. I am not satisfied on the balance of probabilities that the accused’s mental processes are disordered or impaired to the extent that the accused cannot follow the course of the proceeding.
Understand the substantial effect of any evidence that may be given in support of the prosecution s 311(1)(e)
Evidence
KHX
Counsel for the accused asked KHX whether the accused would be able to comprehend the substantial impact of one witness saying “I saw a person light the fire who was wearing a green top and white pants” and another witness saying “I saw MU wearing a green top and white pants”. KHX gave evidence that the accused would not understand that those concepts are related (T21.11-13). KHX noted that the accused’s inability to interconnect pieces of information was a comprehension issue she had observed throughout his life (T.21-16). KHX gave evidence that the accused struggles to comprehend that A plus B might equal C (T21.19).
Counsel for the accused informed KHX that the prosecution case was a circumstantial case and KHX gave evidence that understanding circumstantial evidence would be difficult for the accused (T21.42). When asked whether the accused would be able to understand the effect of circumstantial evidence if he was given appropriate support, KHX stated that she did not think the accused had capacity to do so as she had never experienced the accused be able to join complex ideas together (T21.47 and T22.13-14).
Bayliss affidavit
In further reference to the conference that took place at the AMC on 18 February 2020 between Ms Bayliss, the accused, and KHX, the Bayliss affidavit sets out Ms Bayliss’ concerns about this criterion. Ms Bayliss noted that her impression was that the accused could not comprehend circumstantial evidence and the weight of that evidence. That is, that despite no one seeing the accused light the fire, the charge could nonetheless be proved through a combination of circumstances. Ms Bayliss hard further concerns that the accused could not grasp that despite him denying the allegation, evidence could be used to prove the charge and he could be found guilty.
Dr Barker
The Barker Report noted that the accused appeared to understand that the prosecution would present evidence to support their case and attempt to secure a conviction. Dr Barker stated in the Barker Report that the accused had reported that prosecution would attempt to prove “that [he] did it”.
When asked by counsel for the prosecution how he had tested the accused on this criterion, Dr Barker stated that he had asked the accused “if the prosecution had evidence, what would they be using that to try and prove?” and the accused had responded, “that I did it” (T60.32-34).
On the second day of the hearing after the receipt of the Bayliss affidavit, counsel for the prosecution asked Dr Barker whether it contained anything that modified Dr Barker’s opinions as expressed in the Barker Report. Dr Barker gave evidence that the receipt of the Bayliss affidavit had raised concern in respect of this criterion as the Bayliss affidavit had set out that difficulties the accused would have with circumstantial evidence and comprehending that circumstantial evidence could secure a conviction (T75.26-30).
Dr Barker gave evidence that this criterion went to the accused’s ability to understand and link abstract concepts. Dr Barker noted that if the evidence was straightforward and concrete, the accused could understand this type of evidence, however as soon as the evidence involved abstract and higher order thinking, the accused would no longer be able to understand (T75.43-46 and T76.1-2).
Counsel for the prosecution asked Dr Barker to assume that part of the prosecution case would be that the accused was found in the area at around the time the fire was lit and in possession of a lighter at the time. When asked whether the accused could understand and follow that that sort of evidence, Dr Barker stated he believed the accused could follow on a basic level but not to the extent that such evidence could be sufficient to secure a conviction. Such evidence would be too sophisticated for the accused to comprehend (T76.30-35).
In cross examination, Dr Barker was asked whether he explored the concepts of what evidence was with the accused and the substantial effect of what evidence is. Dr Barker gave evidence that he had discussed different types of evidence with the accused, such as eyewitness testimony and CCTV footage (T84.10-15). When asked a hypothetical query of whether the accused could understand the substantial effect of CCTV footage, Dr Barker stated that the accused could understand this type of evidence (T84.22).
Dr Barker agreed that it was possible that the accused would not be able to understand the effect of circumstantial evidence. Dr Barker stated that the accused may not be able to link concepts together and that while the accused may be able to undertake a simple linkage, if the logic continued to be extended the accused would not understand as the linkages became more complex (T84.34-37). Dr Barker agreed that if there were several linkages that ultimately formed the big picture, the accused may not be able to follow (T84.40-41).
Dr Clout
In the Clout Report, Dr Clout noted that the accused did not appear to understand the concept of evidence. Dr Clout stated that given the degree of the accused’s intellectual impairment, he would be unlikely to be able to consider the sort of evidence that may be useful, or the significance of any evidence presented.
At the hearing, Dr Clout maintained her concern that the accused did not appear to understand the concept of evidence (T91.38). Dr Clout accepted that it would be difficult for the accused to understand the concept of A plus B might equal C (T92.5).
Consideration
In R v Dunne, when considering the Western Australian legislative equivalent of s 311(1)(e), Miller J observed:
The accused does not have to understand the evidence in detail, nor does [he/ or] she have to understand the law and its application to the facts of the case.
As for s 311(1)(d), the presence of legal representation is also relevant to determination of this criterion. In R v Monaghan(No 2) at [27] and [29], Refshauge J made the following observations about the relevance of a defendant having counsel:
It is clear on [the] authorities that the assistance of counsel is an important factor in determining whether an accused is fit to plead. Naturally, an accused whose mental processes are disordered or impaired will not be at an unacceptable disadvantage if he or she is represented by counsel who is able to ensure that… the accused can follow the trial and substantially understand the evidence.
…
Other steps can also be taken. For example, an adjournment can be taken: Kesavarajah v The Queen (1994) 181 CLR 230 (at 246). This will allow counsel to explain what is happening and the effect of evidence. It does not seem to me that where an accused does not understand the substantial effect of evidence as it is spoken by a witness, he or she must be unfit to plead when they can understand it if explained carefully by his or her legal representatives. This is likely to be the position in relation to many accused whose trial includes expert witnesses who give complex technical evidence, such as DNA evidence, and particularly the probability statistics that are part of that.
It was submitted by the prosecution that in conjunction with the provision of legal representatives, the special measures discussed by the prosecution in respect of aiding a defendant to follow the course of the proceeding were also applicable to assist a defendant to understand the substantial effect of any evidence proffered by the prosecution.
Counsel for the prosecution again referred to R v Monaghan (No 2) where at [87] Refshauge J further observed:
It seems to me, also, that it is the responsibility of Mr Monaghan’s legal representatives to explain to him the evidence as it is led at trial. This is not a quasi-interpreters role, but involves a discussion with Mr Monaghan during the proceedings from time to time. It may, with a witness whose evidence is short, only involve a brief discussion at the end of that witness’ evidence. For that purpose, adjournments may need to be provided. That is a matter for the trial judge but it will be the responsibility of Mr Monaghan’s counsel to see that they are sought as he or she will have a better feel, especially as a result of the preparation process, as to how often they are needed.
Counsel for the prosecution accepted that in the circumstances of the present matter, even if the accused was equipped with such special measures and acknowledging that the accused has highly competent legal representatives, it did not appear that the accused would be able to understand the substantial effect of the circumstantial evidence which would be presented by the prosecution in this matter. Counsel accepted that the case against the accused was entirely circumstantial.
It was submitted that the expert evidence the Court had received, as well as the evidence from Ms Bayliss and the general evidence about the accused’s intellectual disability and comprehension difficulties, it was open to the Court to find that the accused was unfit to plead on this criterion. In my view, this submission on the part of the prosecution is soundly based and I accept it.
Counsel for the accused noted that the prosecution case in this matter is a circumstantial case and there is no direct evidence that the accused committed the offence. It was submitted that the requirement to understand the substantial effect of any evidence would encompass a requirement to understand that individual pieces of evidence may link together to form a bigger picture.
Again, in my view, this submission is soundly based and I accept that the accused is unlikely to have the capacity to understand circumstantial evidence.
In my view with respect to this criterion on the balance of probabilities, the accused is unable to understand the substantial effect of the evidence, namely circumstantial evidence. I am satisfied on the balance of probabilities that the accused’s mental processes are disordered or impaired to the extent that the accused cannot understand the substantial effect of the evidence that may be given in support of the prosecution.
Give instructions to the person’s lawyer s 311(1)(f)
Evidence
KHX
KHX confirmed that she had been present at conferences between the accused and Ms Bayliss (T16.7). KHX gave evidence that her understanding of what the accused’s believes his legal representatives job is, is to “get him off”. KHX noted that she did not know whether the accused could in fact provide his legal representative with instructions to that effect. KHX stated that the accused would not be able to “connect the dots in his own mind” as to evidence that might assist him in conducting a defence (T17.31-37).
KHX stated that the accused could only give instructions to the extent that he could tell Ms Bayliss words to the effect of, “I want to get out. I’ve heard that’s bail, get me bail” but could not give instructions about how he would like to proceed with the matter (T22.20-22).
Counsel for the accused asked KHX whether the accused would be capable of understanding what an alibi was and whether he would be able to articulate “I was with someone” or “I was doing something, you can check with them”. KHX gave evidence that the accused had told her, “oh no, I was with my mate in his car” but that the accused could not provide the full name of the “mate” nor could he provide sufficient detail about the type of car. KHX confirmed that the accused might be able to merely say “yeah, I was somewhere else” but it would not extend beyond this. KHX also raised concerns that the accused may provide a fabrication (T22.27-34).
KHX gave evidence that the accused would not be capable of making a determination of whether to have a trial by a judge alone and that he would not be able to make an assessment between proceeding with a jury or by judge alone. KHX stated that the accused would make a decision based on a “coin flip” (T23.9-10).
KHX was asked how the accused’s concept of time would inform his ability to provide instructions about an alibi. KHX stated that the accused has difficulty with time and dates, and may not be able to provide information unless it was an event that he undertook every single week on a specific day and he knew that it was that day of the week (T23.36-39). KHX stated that even if you continued to prompt the accused for answers, there would be occasions where no information would be forthcoming due to the accused’s issues with working memory (T24.3-5).
In cross examination, KHX confirmed that if something was explained to the accused by his legal representatives in plain English, at a slow place, using visual diagrams and having the information repeated, the accused could understand it. KHX noted that the accused would only be able to understand it at the time and would unlikely be able to retain the information (T39.44-47).
KHX confirmed that she had read the Clout Report, as well as the original statement of facts and the case statement. KHX agreed that the accused had provided Dr Clout a version of events about the night of the alleged offence (T40.27-37). KHX further confirmed that she was aware that the accused had told police on the night of the alleged offence where he had been and how he had gotten to the location at the time (T40.41-44). KHX agreed that the accused was capable of telling his legal representatives the version of events he had told police on the night (T40.46).
KHX was asked by counsel for the prosecution whether the accused would be able to answer, “do you have a green shirt?” from his legal representatives, if there was evidence that someone wearing a green shirt and white pants lit the fire and evidence that someone saw the accused wearing a green shirt and white pants. KHX stated that the accused would answer the question, but it would be difficult to know whether he was telling the truth (T41.29-32).
Bayliss affidavit
After recounting the first conference Ms Bayliss had with the accused on 17 January 2020, the Bayliss affidavit sets out that Ms Bayliss held concerns about the accused’s capacity including because he could not provide any real detail about his alibi or version of events.
After this first conference, the Bayliss affidavit sets out that Ms Bayliss had attempted to discuss a potential alibi with the accused on various occasions, both before and after the matter was committed to the Supreme Court. Ms Bayliss noted that the accused had been unable to give any substantial details about his alibi, other than indicating the first name of a person and a style of car.
Ms Bayliss stated that the accused’s inability to provide her with these basic instructions significantly disadvantages the accused. Ms Bayliss noted that she had spoken about an alibi with the accused on his own on three occasions, and then asked KHX to have those discussions with the accused as she had not been unable to obtain the necessary information in any cogent form or with any tangible detail. Ms Bayliss confirmed that no further details had been forthcoming.
Dr Barker
In the Barker Report, Dr Barker reported that the accused had indicated that he was unsure of whether he was able to provide instructions to his legal representative and that he had stated “I don’t know”. Dr Barker noted that on further exploration it appeared that the accused did feel able to talk to his legal representative about various legal options, but was uncertain about which option he should choose.
Dr Barker was asked by counsel for the prosecution what questions he had asked the accused to determine his opinion on this criterion. Dr Barker stated that he had only explored with the accused whether he felt able to provide a plea of guilty or not guilty to his legal representative. Dr Barker confirmed that he did not explore more generally the accused’s capacity to provide instructions and was instead focusing on his ability to enter a plea (T74.9-20).
Dr Barker stated that he did not form an opinion on whether the accused was able to provide a version of events to his legal representatives about the alleged offence, nor whether the accused would be able to inform his legal representatives whether information or evidence that was presented was true or untrue (T74.24-30).
When asked whether the accused would be capable of answering the question “do you have a green shirt?”, Dr Barker gave evidence that the accused “possibly” could do so and that he believed the accused had some capacity to do so. Dr Barker noted that his opinion was based on the statement of facts where the accused had provided a version of events which was “something of an exculpatory attempt” (T74.41-45).
Dr Barker further stated that he was not certain whether the accused would be capable of providing a qualified answer, such as “I did have a green shirt, but I lost it” (T75.3-7).
Dr Barker confirmed that he believed that the accused was able to provide his legal representatives with a version of events as to what happened on that night but whether that version was “strategically sound” was another query (T75.17-18).
Counsel for the prosecution asked Dr Barker whether the Bayliss affidavit had changed his opinion in respect of his criterion. Dr Barker noted that this criterion came down to legal interpretation and he had not extended beyond the implications of entering a plea. Dr Barker was unsure whether the accused would need to be able to be able to provide a version of events and qualify evidence to satisfy this criteria (T77.1-3).
In cross examination, Dr Barker was asked whether the accused would have the capacity to make a decision as to whether to have a jury trial or a trial by a single judge, if he was provided with the assistance of his legal representatives. Dr Barker confirmed that he believed the accused was capable of agreeing with the position advised by his legal representatives as to that decision (T89.7-9).
Dr Clout
In the Clout Report, Dr Clout noted that the accused had described the role of his legal representative (Ms Bayliss) as “someone who tells him what to do”. Dr Clout stated that the accused did not appear to understand the specific role of his legal representative, or his ability to provide instructions. Dr Clout opined that the accused would be likely to be able to provide his version of events to his legal representative, although unlikely to be able to give more detailed instructions relating to his defence.
Dr Clout gave evidence that she maintained her concern about the accused’s capacity to give instructions to his legal representative upon receipt of the Bayliss affidavit. Dr Clout maintained that the accused could likely merely provide a verbal summary of his version of events (T92.9-11). Dr Clout further stated that it seemed unlikely that the accused would be able to provide instructions to his legal representative in a detailed manner and be able to conceptualise the time and place of when the offence occurred (T93.46).
In cross examination, Dr Clout agreed that the accused had provided her a version of events during the interview and that he had denied committing the offence, as well as denying having any knowledge of how the offence occurred (T99.6-12). Dr Clout also confirmed that she had recorded in the Clout Report that KHX had informed her the accused had said he had been “stitched up” (T99.16). Dr Clout agreed that these were examples of the accused giving his version of events in relation to the alleged offence and that the accused could inform his legal representatives of this version, but qualified that the accused would only be able to give “basic details” (T99.19-21).
Counsel for the prosecution asked Dr Clout whether the accused would be capable of qualifying an answer to the question of “do you have a green shirt?” by saying something to the effect of “yes, but I gave it to a friend that day” or qualifying any information he had heard presented at trial. Dr Clout stated that the accused may be able to answer such a question but there would be a concern as to whether the answer was itself accurate (T99.32-34).
Counsel for the prosecution asked Dr Clout whether if it was explained to the accused by his legal representative that he can tell them whether or not information that is presented is true or untrue, whether the accused would be capable of doing so. Dr Clout gave evidence that the accused could “potentially” do so but there would be concerns in terms of his memory. Dr Clout noted that the results of the psychometric testing also showed that the accused had a tendency to confabulate: when he did not know the answer, he would make something up. Dr Clout noted that such a tendency is not uncommon with individuals who live with intellectual disability (T99.42-46).
Dr Clout stated that the accused may not understand that he could point out to his legal representatives whether believes that something that has been said in the course of evidence is wrong. Dr Clout noted that she believed the accused would need the capacity to first identify that something was wrong and that would present as a challenge to the accused (T102.46-47 and T103.1).
Consideration
In R v Presser at 48 Smith J articulated this criterion as a defendant needing:
… to be able make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any.
In R v House [1986] 2 Qd R 135; A Crim R 344 (R v House), the Criminal Court of Appeal of Queensland noted that the Queensland legislative equivalent of s 311(1)(f) involves a defendant
… understanding the evidence which is led so as to be able to inform counsel whether it is true or not and whether there are other facts which qualify or explain the evidence adduced. It does not involve understanding the law especially if, as in this case, he has the benefit of counsel: see Ngatayi (1980) 147 CLR 1.
The R v House test has been applied by Refshauge J in R v Fisher and his Honour had noted at [63] and [65] that evidence from a defendant’s solicitor assists the Court in its inquiry for this criterion as expert witnesses “sometimes misunderstand the actual dynamics of the giving and receiving of instructions to and by lawyers” and that solely relying on the evidence of experts can risk the wrong question being answered.
It was submitted by counsel for the prosecution that the R v House test composed of two parts. First, the accused must be able to inform counsel whether evidence led at trial is true or not. Second, the accused must be able to inform counsel whether there are other facts which qualify or explain evidence at trial.
Counsel for the prosecution submitted that the first part of the R v House test was satisfied in the present matter. However, it was conceded that the evidence of both Dr Barker and Dr Clout indicated that the accused would be unable to inform his legal representatives of other facts to qualify or explain evidence presented at trial due to the accused’s intellectual disability. The second limb of the R v House test was not made out.
It was noted that the present matter was able to be distinguished from R v Chemhere (Unreported, Supreme Court of the Australian Capital Territory, Nield AJ, 18 May 2012) where Nield AJ had observed at [26] that there was an absence of evidence from Mr Chemhere’s solicitor as to whether they had experienced difficulties in obtaining instructions. Counsel for the prosecution submitted that the Bayliss affidavit made plain that Ms Bayliss had difficulties in obtaining instructions, despite attempting to elicit information from the accused in a myriad of ways and explaining concepts in simplified ways.
Counsel for the prosecution highlighted that Refshauge J had stated in R v Fisher at [66] that the R v House test “is not too high”. However, in light of the expert evidence in this matter and the difficulties set out in the Bayliss affidavit, it was submitted that it was open for the Court to find that the accused’s mental processes are so disordered that he cannot give instructions to his legal representatives.
Counsel for the accused also submitted that this criterion is to be determined by the application of the R v House two part test. It was submitted that the Bayliss affidavit provided the clearest evidence in respect of determining whether the accused was able to provide instructions.
The evidence at the hearing was that the accused may have a tendency to confabulate if he does not know the answer. It was submitted that the issue of confabulation could be distinguished from a situation where a hypothetically average defendant provided their legal representative with incorrect instructions. Here it was submitted that the accused’s potential to confabulate was related to a symptom of his intellectual disability and would have a direct impact on his capacity to provide instructions.
Counsel for the accused highlighted that Dr Barker had not explored in detail in the psychiatric interview the ability of the accused to provide instructions generally. Instead, Dr Barker had only focused on the accused’s capacity to instruct in relation to entering a plea.
The criteria contained within s 311(1) of the Crimes Act set out the minimum standards that a person must meet in order to be able to participate in the trial without unfairness or injustice. The accused’s impaired ability to comprehend concepts and thereby understand advice has the effect that his ability to provide instructions at each stage of the proceeding would be severely hampered.
I note the concern raised by Dr Clout that the accused may not be able to provide detailed instructions beyond his basic version of events. In the context of the accused’s tendency to confabulate and the difficulties outlined the Bayliss affidavit, I find that the accused is unfit to plead on this criterion as he does not have the requisite ability to provide instructions. I am satisfied on the balance of probabilities that the accused’s mental processes are disordered or impaired to the extent that the accused cannot give instructions to his lawyers.
Conclusion on s 311(1) Criteria
I find that the accused is unfit to plead. The presumption in s 312(1) of the Crimes Act that the accused is fit to plead is rebutted. I have found the accused is unfit to plead on a number of the s 311(1) criteria. Nevertheless, I note that a finding that an accused is unfit to plead on any of the criteria results in unfitness to plead, as the s 311(1) criteria are the minimum standards that must be met before an accused can be tried without unfairness or injustice: R v Presser at 48; Kesavarajah v The Queen at 245 (Mason CJ, Toohey and Gaudron JJ) and 249 (Deane and Dawson JJ agreeing); R v Rivkin [2004] NSWCCA 7; 59 NSWLR 284 at [298]-[301].
Unfit to Plead and Unlikely to Become Fit to Plead
Upon a finding that the accused is unfit to plead, the Court must then determine whether the accused is likely to become fit to plead within the next 12 months: s 315A(4) Crimes Act.
Prosecution Submissions
Counsel for the prosecution submitted that having regard to the expert evidence of Dr Clout and Dr Barker in this matter, the prosecution accepted that the accused’s intellectual impairment is enduring and he would be unlikely to become fit to plead within the next 12 months.
Defence Submissions
It was submitted that if the Court was satisfied that the accused was unfit to plead, the Court could also be satisfied that the accused was unlikely to become fit to plead within 12 months.
Consideration
Having regard to the evidence about the accused’s intellectual impairment in this matter, I am satisfied that the accused is unlikely to become fit to plead within the next 12 months.
Capability to Make Election to Have Special Hearing to be a Trial by a Jury or by a Single Judge without a Jury
As I determined that the accused is unfit to plead and was unlikely to become fit to plead within the next 12 months, the Court must hold a special hearing: s 315C(a)(ii) Crimes Act.
Section 316 of the Crimes Act sets out the procedure for conducting a special hearing. It states the following:
316 Special hearing
(1) Subject to this section, the Supreme Court shall conduct a special hearing as nearly as possible as if it were an ordinary criminal proceeding.
(2) A special hearing shall be a trial by jury—
(a) unless—
(i) the Supreme Court is satisfied that the accused is capable of making an election to have a special hearing to be a trial by a single judge without a jury before the court first fixes a date for the hearing; and
(ii) the accused makes the election before that date; or
(b) unless—
(i) the Supreme Court is satisfied that the accused is incapable of making the election mentioned in paragraph (a) (i); and
(ii) before the court first fixes a date for the hearing, any guardian of the accused notifies the court that, in his or her opinion, it is in the best interests of the accused for the special hearing to be a trial by a single judge without a jury.
(3) The Supreme Court must direct the ACAT to appoint a guardian with power to notify the court under subsection (2) (b) (ii) if the court is satisfied that—
(a) there is no guardian who has power to do so; and
(b) the accused is incapable of making the election mentioned in subsection (2) (a) (i).
(4) If—
(a) the accused makes an election under subsection (2) (a) (ii); or
(b) a guardian notifies the Supreme Court under subsection(2)(b)(ii); the special hearing shall be by single judge without a jury.
(5) Despite subsection (2) (b), if before the date fixed by the Supreme Court for the hearing—
(a) the court is satisfied that the accused is capable of making the election mentioned in subsection (2) (a) (i); and
(b) the accused notifies the court that he or she objects to the special hearing being a trial by a single judge without a jury; the special hearing shall be a trial by jury.
…
In R v Chute (No 3) [2017] ACTSC 409 (R v Chute (No 3)) at [6] and [8], Mossop J made the following observations about what is required of an accused to be capable of making a decision of whether to have the special hearing be a trial by jury or by a single judge without a jury:
6. In order to be capable of making a decision as to whether or not to elect for a trial by judge alone, the accused must, in my view, be capable of:
(a) Understanding the nature of the decision and the choice to be made;
(b) Understanding the advice as to what considerations should be taken into account in relation to that decision;
(c) Understanding advice as to those considerations and hence the reasons for a recommendation provided by the accused’s lawyer;
(d) Making a judgment for himself as to whether or not to accept or reject that advice and make the required decision (and, conversely, not being in a position where because of his intellectual incapacity he has no choice but to accept the advice).
…
8. The decision required to be made for the purposes of an election is a more discreet process than following the course of a criminal trial. However it does involve a need to be able to understand advice and the capacity to weigh, with the benefit of that advice, various matters so as to reach a decision about what course to take.
Consideration
Counsel for the prosecution submitted that as both parties agreed that the accused was unfit to plead having regard to the criteria to understand the substantial effect of any evidence that may be given in support of the prosecution and give instructions to the person’s lawyer, it was open for the Court to determine that the accused was also incapable of making the election (T120.29-33). It was submitted that while there was no further evidence before the Court that addressed the question of the election, there was sufficient evidence already before the court to make a finding that the accused would not be capable of understanding the nature and decision of the choice to be made (T120.37-42). I agree with this submission as it accords with my view of the evidence.
Counsel for prosecution also noted that it was the understanding of both parties that there was currently no guardian for the accused who would have the power to make the election on behalf of the accused (T123.6-12). Counsel for the accused did not cavil with this submission.
In light of the evidence about the accused’s inability concerning circumstantial evidence, his lack of capacity to instruct, and taking into account the test set out in R v Chute (No 3), I am satisfied that the accused is incapable of making an election to have a special hearing to be a trial by jury or by a single judge without a jury: s 316(2)(b)(i) Crimes Act.
I am further satisfied that there is no guardian currently appointed for the accused who has the power to make an election on behalf of the accused to have a special hearing to be a trial by jury or by a single judge without a jury: s 316(3)(a) Crimes Act. I therefore direct the ACAT to appoint a guardian with the power to notify the court that in his or her opinion, it is in the best interests of the accused for the special hearing to be a trial by a single judge without a jury: s 316(2)(b) Crimes Act.
Addendum
After I made the findings on 1 February 2021 and directed that the ACAT appoint a guardian with power to notify the court whether in the guardian’s opinion, it is in the best interests of MU for the special hearing to be a trial by a single judge without a jury, the ACAT dealt with an application by KHX to be appointed as the accused’s guardian for this discrete purpose.
The application first came before the ACAT on 9 March 2021. On this occasion, the ACAT became concerned that the accused had permanently relocated to New South Wales (NSW) and queried whether the Tribunal had jurisdiction to appoint a guardian for a person who does not reside in the Australian Capital Territory. The ACAT adjourned the hearing and made directions requiring the parties (being the accused, KHX, the accused’s solicitor, the prosecution, and the Public Trustee and Guardian) to provide written submissions addressing the issue. The ACAT received written submissions from the prosecution and KHX.
On 23 March 2021, the hearing was resumed before the ACAT. At this time, the ACAT was satisfied that a guardian could be appointed for this discrete purpose, notwithstanding that the accused resides in NSW. The ACAT ordered that KHX be appointed as guardian for the accused with power to make an election for a special hearing to be a trial by a single judge without a jury.
On 8 April 2021, the matter returned before me for mention to check the progress as to whether a guardian had been appointed by the ACAT and whether the special hearing would proceed as a trial by jury or by a single judge without a jury. On this occasion, leave was granted for an affidavit of KHX affirmed 8 April 2021 (the KHX affidavit) to be filed in court. The KHX affidavit set out that it was KHX’s opinion that it was in the accused’s best interests that the special hearing be a trial by a single judge without a jury and annexed an election for trial by judge alone.
The special hearing is to be a trial by a single judge without a jury and is listed before me to commence on 5 August 2021.
Orders
On 1 February 2021, I made the following orders:
(a) I find that MU is unfit to plead;
(b) I further find that MU is unlikely to become fit to plead within the next 12 months;
(c) I am satisfied that MU is incapable of making an election to have a special hearing to be a trial by a single judge without a jury;
(d) I direct that the ACAT appoint a guardian with power to notify the court whether in the guardian’s opinion, it is in the best interests of MU for the special hearing to be a trial by a single judge without a jury.
(e) The matter is to be set down for a special hearing.
| I certify that the preceding two hundred and twenty-eight [228] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Rhiannon McGlinn Date: 22 July 2021 |
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