R v Norris - [2020] SADC 11

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v NORRIS
Criminal Trial by Judge Alone
[2020] SADC 11
Reasons for Decision of His Honour Judge Stretton
14 February 2020
CRIMINAL LAW - PROCEDURE - FITNESS TO PLEAD OR BE TRIED - DETERMINATION OF ISSUES
Investigation into the accused’s fitness to stand trial. Evidence was called from three medical witnesses.
The accused has a mild intellectual disability. However so long as certain accommodations are made at trial to allow the accused to have procedural issues and the evidence regularly explained to him by his legal representatives, then he will be able to understand and respond rationally to the charge and the allegations on which the charge is based, exercise his procedural rights or at least give rational instructions about the exercise of those rights, and will be able to follow the nature of the proceedings and follow the evidence and the course of proceedings.
Held:
The accused is fit to stand trial.
Criminal Law Consolidation Act 1935 SA s269H, s269I, referred to.
R v Hayles [2018] SASCFC 58; Kesavarajah v The Queen (1994) 181 CLR 230; R v Presser [1958] VR 45, considered.

R v NORRIS
[2020] SADC 11
Introduction

The accused, Charles Norris, is charged with two counts of aggravated indecent assault. It is alleged that between 1 December 2014 and 31 January 2015 he indecently assaulted the complainant by causing her to touch his penis and also by him touching her vagina, at a time when the complainant was under 14 years of age.
The prosecution case is that these events occurred on a single occasion. It is alleged that on the day concerned the accused took the 8-year-old complainant for a drive and offended against her in the course of the events that followed.
Fitness to stand trial
The accused has applied for an investigation into his fitness to stand trial and through his counsel maintains he is not fit to stand trial. An accused bears the onus to establish unfitness to stand trial on the balance of probabilities. I set out the relevant statutory provisions. Section 269I provides that:
269I—Presumption of mental fitness to stand trial
A person's mental fitness to stand trial is to be presumed unless it is established, on an investigation under this Division, that the person is mentally unfit to stand trial.
The criteria as to whether a person is fit to stand trial is set out in s 269H of the Criminal Law Consolidation Act 1935 (SA)(the Act).
269H—Mental unfitness to stand trial
A person is mentally unfit to stand trial on a charge of an offence if the person's mental processes are so disordered or impaired that the person is—
(a)unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based; or
(b)unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or
(c)unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.
It is well understood that this test replicates the common law test as outlined in R v Presser.[1] In that case, the Victorian Supreme Court held that an accused needs to be able to understand what he is charged with, plead to the charge and exercise his right of challenge. Further, he needs to understand generally the nature of the proceedings, namely that it is an enquiry as to whether he did what he is charged with. Further, he needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not understand the purpose of all the various court formalities. The accused also needs to be able to understand the substantial effect of any evidence that may be given against him and to be able to make his defence or answer to the charge. If the accused has counsel he needs to be able to instruct his counsel, let his counsel know his version of the facts and if necessary be able to tell the court what it is. The Victorian Supreme Court went on to observe that the accused need not be conversant with court procedure or have the mental capacity to make an able defence, but he must 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.
[1] [1958] VR 45.
In Kesavarajah v The Queen,[2] the High Court referred to the case with approval. Most recently, Stanley J in R v Hayles[3] reiterated these principles.
[2] (1994) 181 CLR 230.
[3] [2018] SASCFC 58.
Of particular relevance to the matter currently before the court, Stanley J said that a reduction in capacity whilst relevant to whether a person is unfit to stand trial, is not sufficient in itself for finding a person is unfit. Rather, to be unfit to stand trial there must be an absence of the capacity to understand and follow the proceedings in the relevant ways.
Evidence called
The accused called a single witness, Dr Catherine Crouch, a forensic psychiatrist. Dr Crouch had assessed the accused on 8 July via an hour-long video conference and reviewed a range of materials supplied to her for the purposes of her assessment. Dr Crouch concluded that the accused has a mild intellectual disability. I set out her concluding opinion as follows:
Mr Norris has a mild intellectual disability. Formal neuropsychological testing was completed recently by Dr Fitzgerald and in 2002 in the process of obtaining a disability support pension. He has an estimated IQ of 66. It has been raised that he may also suffer from alcohol related brain injury although this remains unconfirmed.
As Dr Fitzgerald identified, Mr Norris has difficulties processing information and completing tasks. He is not able to absorb lengthy information due to impairments in his working memory. There is evidence that he is unlikely to remember things told to him unless repeated. He has a concrete thinking style.
There is no evidence that Mr Norris suffers from any major mental illness.
I note that Dr Fitzgerald considered that Mr Norris was fit to stand trial with certain accommodations being made by the court, however, I have some concerns that despite these accommodations Mr Norris would not be able to follow the course of proceedings, respond rationally to the charges or exercise his procedural rights. Of note, Dr Fitzgerald spent time explaining basic, simplistic court proceedings to Mr Norris, he was unable to harness any of this knowledge during the interview with me. It was also noted that with any leading question, Mr Norris generally agreed with what was being asked. He was vulnerable and easily led.
He had difficulties in his understanding of the court process, the roles of those involved and his plea options. He was very concrete about potential outcomes and the meaning of the plea terms. It did not appear that he would be able to instruct his lawyer or formulate a defence. It was unlikely that he would be able to follow the course of proceedings. In addition to his relative naivety to the criminal justice system his severely impaired working memory and verbal processing mean that the likelihood that he could adapt and learn in the court environment is severely limited. Therefore I believe that Mr Norris is unfit to stand trial.
When Dr Crouch was called to give evidence she departed from this, her earlier conclusion. Her reason for doing so was that she had subsequently received a forensic psychiatric assessment from Dr Oliver Burgess that had been conducted with the accused on 5 September 2019. That date was several months after Dr Crouch had assessed the accused. Dr Crouch observed that Dr Burgess’ report revealed that the accused had been able to engage and discuss the relevant matters better than when he had seen her.[4] That assessment revealed the accused more able to engage than he had been able to with her, and more able to retain and provide information relevant to his ability to stand trial than had been revealed on her assessment. Dr Crouch indicated that those subsequent observations by Dr Burgess had caused her to alter her opinion such that she was now of the view that if suitable accommodation of the accused’s situation could be made at trial, that he would be fit to stand trial.
[4] T55.
Dr Crouch went on to say that if the arrangements suggested by doctors Fitzgerald and Burgess were made to assist the accused during the course of his trial, he would be fit to stand trial. Dr Crouch agreed that in light of the accused’s presentation to Dr Burgess and the availability of his lawyer with suitable breaks in the proceedings to remind him of the charges and the issues, and advise him as to his options, that he would be able to understand and respond rationally to the charge and the allegations, would be able to exercise his procedural rights, would be able to understand the nature of the proceedings and would be able to follow the evidence and the course of proceedings.
Dr Crouch indicated that she still had concern that the accused was going to have real difficulties dealing with some aspects of the trial, particularly should he give evidence on oath and be cross-examined. Dr Crouch indicated that given that one of his difficulties was retaining received information, particularly a large amount of verbal information at once, and also being able to process it and provide a response, that the accused would still have issues with working memory and verbal processing in the context of giving evidence and, by inference, particularly being cross-examined. At p 68, in the course of cross-examination, Dr Crouch explained:
QIn terms of how the examination and cross-examination would proceed, on balance what’s your opinion about his ability to withstand examination and cross-examination if the questions are put in simple, single propositions about concrete matters and his understanding of them is explored by further questioning if necessary.
AI think that would be – like there would be the hope that that would be able to succeed but I think any session of examination or cross-examination would need to be quite short to then allow a period after that where Mr Norris is able to have that time to have that kind of summarised check that he has actually understood what has happened and show some ability of retaining before progressing further. Going back to that comment with the verbal processing I made before, like if it’s a very – a longer kind of session, he is going to get to the point that he essentially becomes saturated and he is not able to then retain that information that’s been discussed.
Dr Emma Fitzgerald, a clinical neuropsychologist, was called by the prosecution. Dr Fitzgerald assessed the accused in person and also had a range of materials provided to her in advance of that time.
Dr Fitzgerald also assessed the accused as having a mild intellectual disability. Dr Fitzgerald assessed the accused against the criteria set out in s 269H of the Act. She observed a significant impairment in verbal comprehension and ability to express himself when discussing moderately complex issues. Nonetheless she concluded that he was able to describe what he had been charged with and deny committing the offence, and in so doing that he understood the charges and was able to rationally respond to them. Dr Fitzgerald also observed that the accused, whilst a relatively naïve defendant with minimal experience of the courts and hence an unsophisticated understanding of procedural rights, was able to understand a number of the basic concepts and procedures that would occur at a criminal trial with some simple explanation. With such explanations Dr Fitzgerald observed that Mr Norris was able to understand his procedural rights as she went through them with him.
As to the trial process itself and his ability to cope with that, Dr Fitzgerald said:
Mr Norris understands that he will go to court in relation to the offences with which he has been charged and he understands that this is to determine whether he is guilty or not guilty of the offences, thus he demonstrated an understanding of the nature of the proceedings. I was not provided with any information as to the complexity of this trial, although I understand it will be comprised of the witness statements provided and perhaps Mr Norris’s ability to understand the witness accounts in court. Working on the assumption this is not likely to be a complex trial, my understanding is that Mr Norris will be required to understand what the witnesses have said, to provide his own account of events to his lawyer, and to potentially tell his lawyer whether he agrees with or disagrees with what the witnesses have said. In my opinion, Mr Norris’s capacity to do this is borderline. He was able to give an account to police in terms of his version of events, and thus I believe he is likely to be able to do the same with his lawyer. The difficulty may arise if he is required to integrate information, such as putting together the different accounts of the witnesses, and match these as well as his own defence. Without some accommodations being made by the court, on the balance of probabilities, I do not believe he has the capacity to follow the evidence.
Nevertheless, if the following accommodations can be made by the court, I believe Mr Norris’s difficulty following the evidence might be compensated for. I would respectively recommend the following:
·    Information will need to be presented in short sentences with a brief break between ideas to allow Mr Norris time to process the information.
·    Language will need to be simple and accurate. He may require things to be explained in a different way if he does not understand it the first time. Care will need to be taken that Mr Norris does not say he understands what has been said due to a belief that this is what is expected of him.
·    Due to his poor working memory and capacity to learn and remember, he will require information presented by witnesses to be summarised into its main points and repeated during breaks.
·    He is not likely to be able to read and comprehend the witness statements, and so this information will need to be summarised and simplified by his legal counsel.
·    Breaks through the proceeding may need to be more regular than usual to allow his counsel time to provide Mr Norris with a simplified summary of what had occurred in court.
If the court is able to implement these recommendations, I believe it will give Mr Norris a much better opportunity to understand and follow the proceedings. Thus, in my opinion, Mr Norris is fit to stand trial if the recommendations above can be implemented, however I do not believe he has the capacity to follow the proceedings if there are no accommodations made.
Dr Fitzgerald was called to give evidence and affirmed her findings. Dr Fitzgerald observed that the accused was able to understand the legal rights that were put to him by police in his interview and apparently able to understand and respond to the questions asked of him. She observed that in some contexts he provided conflicting answers and seemed a little confused as to some of the questions which were put to him. She observed that when restated he was able to answer appropriately, but that there was not always an indication that he completely understood the question even when he agreed in the affirmative. She observed he was able to provide a detailed history which was consistent with a history she noted in an earlier report. Dr Fitzgerald observed that the accused consistently denied the allegations that were put to him in his police interview and also denied them to her. At the conclusion of examination-in-chief Dr Fitzgerald said that the accused’s condition was stable in that it will not deteriorate over time. The court can accordingly be confident that his condition will not have deteriorated between the time of assessment and the time of trial.
In cross-examination Dr Fitzgerald was taken through all of her findings and repeated her observations and conclusions. As with each of the other doctors, Dr Fitzgerald indicated she had observed suggestibility on the part of the accused, in particular, based on his police interview and Dr Crouch’s assessment. Dr Fitzgerald observed that suggestibility was not uncommon for someone with a disability. Such a person in such a situation may be suggestible because they feel uncomfortable about asking for clarification or they may want to please the questioner or the listener.[5] On the topic of whether the accused could deal with cross-examination, Dr Fitzgerald indicated that the accused’s ability to cope would depend on a number of factors. At p 37 she said:
[5] T31-32.
AI don’t – I guess it would depend a little bit on the attitude of the person asking questions but if it were – I guess at the end of the day, no, I don’t think he would cope with those types of closed questions that might come rapidly and that perhaps are lengthy, he has not got that capacity to hold the information and to keep up and to be able to respond in a way that has considered as opposed to just sort of saying “yes” to help him get out of that situation.
QCan I get you to factor in another component of that cross-examination process, and that is that when a witness is under cross-examination that they are not permitted to speak to their lawyer about their evidence.
AYes.
QDoes that heighten your concerns about his capacity to give evidence, knowing that.
AYes.
QThat he would in effect be bereft of the very processes you’ve suggested that would enable him to cope with the flow of information.
AI think he would be sufficiently disadvantaged, yes.
QDisadvantaged to the point of effectively being unfit.
ASorry, it helps me to have a look at my test scores. I think – well, as I said, I think he’d be so confused and muddled that he is at high risk of being in a situation where he is not fit if he were in that very adversarial, quick situation where somebody is asking him questions.
Dr Fitzgerald said there was potential that the accused might simply agree or acquiesce to propositions out of anxiety.[6] The court then explained to the witness the degree to which cross-examination could be constrained by concepts of fairness relevant to the witness in question, and the scope of the cross-examiner’s right to put questions and test the witness. Dr Fitzgerald replied that that gave her some reassurance, in that questions to the accused could be limited to one question at a time and perhaps one assumption at a time. Dr Fitzgerald observed that the fact that a cross-examiner had no obligation to keep matters sequential may be confusing to the accused, but she observed that he did seem to have been consistent in his recollection of events and able to deny the allegations when put to him. She said he would probably be able to cope with cross-examination as to the minutiae of the alleged conduct.[7]
[6] T38.
[7] T41.
Overall, Dr Fitzgerald agreed that the accused would be at a significant disadvantage in giving evidence given his mild intellectual disability and his situation generally. Overall, the effect of Dr Fitzgerald’s evidence was that the accused would be able to understand questions put to him and rationally respond so long as they were clear and restricted to a single proposition and did not require him to keep in mind more than one assumption. Her evidence was that he would be able to understand the allegations and respond to them, as he had maintained consistent denials when the allegations were put to him in more than one context in the past, both by police and assessing doctors. He would have difficulties responding to complex questions, for example, if asked why his current answer was inconsistent with something he had previously said. In relation to matters other than the core allegations, which he had consistently denied, there would be an element of suggestibility and risk of acquiescence.

Ultimately, Dr Fitzgerald was asked in re-examination whether he would be able to “withstand” cross-examination. She responded that she did not believe he would be wholly unable to withstand cross-examination, although there was a risk that some of his answers might be unreliable depending on the question, the complexity of the question, and how quickly it was asked.
The final witness was Dr Oliver Burgess, a psychiatrist at the Forensic Mental Health Service. Dr Burgess reviewed Mr Norris on 5 September 2019 by audio visual link and was provided with a range of other materials prior to that date.
Dr Burgess also assessed the accused as suffering a mild intellectual disability. Dr Burgess set out his conclusions as follows:[8]
[8]    Report of Dr Oliver Burgess Psychiatrist dated 19 September 2019.
14.1Mr Norris expressed an awareness of the allegations. He has responded rationally and consistently to these allegations across several interviews, denying the allegations.
14.2Mr Norris is naïve to the courtroom. He demonstrated a basic understanding of the nature of the court, that it exists “to see who’s guilty and who’s not” with an awareness that if he was found guilty there may be consequences such as “probably prison”. However, he was not aware about how the court or the judge came to their conclusion or what was taken into account. With sufficient time and prompting he was able to express an awareness of the role of the judge, his lawyer and the police (or prosecutor) in the court.
14.3He has very limited understanding of even simple legal terms, such as evidence, but when this is expressed in other ways, such as with concrete examples, which are relevant to his case, he was able to understand terms such a witness (someone who “reckon they’ve seen something”). He was unaware of any evidence, or witnesses which the police had against him.
14.4Mr Norris has very limited awareness of his rights within the courtroom. Due to his cognitive impairment and nativity,(sic)[9] he is unlikely to be able to exercise his rights spontaneously. For example, he was unaware that he was able to speak to anyone (including his lawyer) in the court room. He did not feel he could ask for help understanding proceedings. However, with specific prompting, he was able to identify that he would be able to talk to his lawyer if he was given sufficient time and that “it would take a while” as he takes some time to think before saying anything. Given his limited capacity to learn, he is unlikely to retain knowledge of this right, it will likely need to be repeated throughout proceedings to allow him to exercise it.
14.5He did not appear to understand the adversarial nature of the courtroom. This, combined with his general suggestibility, may lead to significant problems if it was not taken into account when asked questions. This is likely to be exacerbated if asked questions in a rapid manner, leading questions, or a series of questions without stopping to ensure he has understood and has not simply answered in the affirmative. This could pose a significant challenge were he to take the stand in his own defence.
14.6In order for Mr Norris to be able to exercise his procedural rights, his lawyer may need to take a relatively active stance. Mr Norris cannot be relied on to spontaneously voice concerns or objections. He will need regular enquiry as to whether he understands evidence raised and in providing him the opportunity to respond. Evidence would need to be summarised into simple concrete terms (avoiding abstract ideas, or hypotheticals). Ideally he would be able to be provided information in a pictorial form given this is where his relative cognitive strengths lie.
14.7With these accommodations made, Mr Norris is likely able to exercise his procedural rights.
14.8In considering whether Mr Norris has the ability to follow the evidence and course of proceedings it is important to highlight the significant deficits in memory and learning. He has not only a poor ability to learn new information, but also a limited ability to learn despite repetition (this is the “flat learning curve” described). As a result of these deficits, relevant information will need to be presented at the time of discussion; he will not be able to otherwise retrieve this information. Given his limited reading abilities, he should not be expected to understand written material. He will need breaks between chunks of information and during court proceedings; otherwise he will be overwhelmed with information. This is likely to be only exacerbated by anxiety induced by the court process.
14.9In summary, Mr Norris can be expected to have substantial difficulties with the trial process. He is naïve to the courtroom, he is highly suggestible with a tendency to answer in the affirmative and a tendency not to spontaneously raise his concerns. He is profoundly impaired in his ability to learn new information, particularly when presented verbally (or in written form) although is more able to process pictorial information (which is less relevant within the court setting) and his ability to remember information is only marginally improved through repetition. Further, his ability to retrieve information once learned is again poor. He has poor executive functioning and attention, meaning he will tire quickly and be overwhelmed with information rapidly. He will struggle to weight options independently or talk in even moderately abstract terms (such as in hypotheticals).
14.10   On balance, given the above, I believe that Mr Norris is fit to stand trial for these alleged offences if a number of accommodations are made such as those mentioned by Dr Fitzgerald…
[9]    This should be ‘naivety’.
Having set out the series of difficulties that the accused would have in the courtroom and his impaired capacities in that context, Dr Burgess agreed with the measures recommended by Dr Fitzgerald that could be taken to address these issues sufficient to satisfy the criteria in s 269H of the Act. They were as follows:
·    Adequate legal representation.
·    Information will need to be presented in short sentences with a brief break between ideas to allow Mr Norris time to discuss with his lawyer and process the information.
·    Language will need to be simple and concrete. He may require things to be explained in a different way if he does not understand it the first time. Care will need to be taken that Mr Norris does not say he understands due to a belief that this is what is expected of him.
·    Due to his poor working memory and capacity to learn and remember he will require information presented by witnesses to be summarised, by his lawyer, into its main points and repeated during breaks.
·    He is not likely to be able to read and comprehend the witness statements and so this information will need to be summarised and simplified by his lawyer.
·    Breaks through the proceedings may need to be more regular than usual to avoid fatigue and allow his lawyer time to provide Mr Norris with a simplified summary of what has occurred in the court.
Dr Burgess gave evidence on oath and confirmed the opinions expressed in his report. Dr Burgess gave evidence that the accused had an awareness of the allegations and that he was able to respond rationally to them, as evidenced by his consistent denials of them. Dr Burgess said that with the support set out in his report, the accused would also be able to exercise his procedural rights. Dr Burgess said that it was important that the accused be assisted to understand the information conveyed in court and for it to be explained to him in basic terms for the purposes of him then exercising his procedural rights, and that appropriate breaks for that purpose be afforded him.[10]
[10] T79.
In cross-examination Dr Burgess confirmed his opinion that with the accommodations set out in both his and Dr Fitzgerald’s reports, the accused was fit to stand trial. Dr Burgess repeated that he would be able to exercise each of his relevant procedural rights so long as they were explained to him in a straightforward way by his lawyer. Dr Burgess agreed that the accused’s suggestibility would be an issue. There was also an issue with the accused’s ability to comprehend and address more than one issue at a time. In his opinion however, regular breaks and advice from his lawyer would adequately manage that issue as well as the accused’s difficulty in retaining large amounts of information or complex questions or concepts.
On the all-important issue of cross-examination, Dr Burgess indicated that in his opinion the accused could cope with the process although the court would need to take into account that he is relatively vulnerable, and relatively suggestible about matters other than the core allegations.[11] Dr Burgess said that the more confusing a questioning process became for the accused, the more likely he would be confused or unable to follow the chain of questions and the more likely he might be to defer to an affirmative answer.[12]
[11] T90 – T91.
[12] TT92.
Dr Burgess said that whilst he would be able to give evidence under cross-examination the court would need to be aware of his general susceptibility to give affirmative answers, particularly if he is confused. Dr Burgess said that the court should be aware of the accused’s tendency to misunderstand a particular question and therefore then answer it incorrectly.[13] Dr Burgess went on to say that he is not completely sure that in the full context of cross-examination, as outlined to him by defence counsel, that Mr Norris would be able to act completely in his best interests, but he thought that the accused would attempt to answer the questions as he remembers the facts. He said that if a question was particularly confusing he may answer incorrectly, in such a way that it did not support his best interests.[14] Dr Burgess expanded on that issue in re-examination:[15]
Q.And I think you said you were concerned that he could not act in his best interests. Was that the effect of your evidence.
A.Sorry, I think it depends on what questions he is asked and how confusing it is. I think he would try to act in his best interests. There is a risk that, given his general suggestibility, if he is asked a confusing question or a question that is slightly ambiguous or a question that he doesn't truly understand or misunderstands he may answer 'Yes' when actually if the question was asked in a different way the correct answer might be 'No'.
[13] T95.
[14] T96.
[15] T98.
Consideration
At the end of the day all three medical witnesses were largely in agreement. Each medical witness agreed that the accused was capable of understanding his procedural rights at trial so long as they were clearly and simply explained to him by his counsel, and agreed that he would be able to exercise those rights.
Each medical witness expressed the view that he was fit to stand trial insofar as he would understand the nature of the proceedings and be able to follow the evidence and the course of proceedings.
They agreed that so long as matters are explained clearly, one concept at a time, and the accused is properly advised, he will be able to understand and respond rationally to the charge and the allegations on which the charge is based. That is independently clear from his interview with police, in which it is clear that he understood why he was being questioned and emphatically denied the allegations when put to him.
The doctors were also all agreed as to the accused’s primary area of disadvantage in any trial. That disadvantage will be if he elects to give evidence on oath and is consequently cross-examined. Whilst there is no suggestion that he would be unable to adequately give evidence in chief so long as questions were asked in a clear and straightforward way by his counsel, the doctors agreed that he would be disadvantaged in that he would be less able to deal with cross examination than the average person, for the reasons earlier expressed. They agreed that he would be capable of recognising and denying the allegations consistently in cross-examination, but were also agreed that he would have difficulty in answering complex questions or questions involving more than one concept. He will also have difficulty if asked to retain too much information, for example a series of assumptions for the purposes of answering a question. Each doctor indicated that in such circumstances if he became confused he would be susceptible to suggestion or might simply answer ‘yes’ in response to that confusion or in that situation.
The accused is accordingly significantly disadvantaged in terms of his ability to give evidence and withstand cross-examination. That is a significant disadvantage. It must be borne in mind that accused persons, like any potential witnesses, will vary from the highly intelligent to the very unintelligent. Accordingly, tactical and forensic skill in the witness box is something that can and will ordinarily vary widely between witnesses. A low degree of tactical or strategic skill in the witness box is not a basis for a finding of unfitness to stand trial. It is only when a person’s ability is so impaired that it falls within criteria set out in s 269H that a person will be unfit to stand trial. Such a finding has serious consequences for all concerned both accused, victim and the community.
The court bears in mind that the fairness of questioning of a witness is controlled by the court. What will be fair and accordingly allowed by the court will be guided by the capacity and situation of that witness, albeit within the broad parameters allowed in cross-examination. Consequently the court will be alive to this when assessing any question put to a witness in cross-examination for fairness. The question will be unfair if it is not capable of being understood by a witness, and accordingly it is within the court’s discretion to require cross-examination to proceed in a simple enough and straightforward enough manner so as to be understandable and hence fair to this accused. To be fair, questioning of this accused must be such that he can understand and respond to the questions asked.
In the final analysis, bearing all this in mind, I am of the view that the accused is capable of giving evidence in his own defence, although his mild intellectual disability will likely make it a more difficult and less comfortable process than for the average witness. That mild intellectual disability places him at a relative disadvantage to the cross examiner. It does not however, render him unable to understand and respond rationally to the allegations. As to the other criteria set out in s 269H, it is common ground that with breaks, advice and support from his lawyers, he will be able to exercise his procedural rights, understand the nature of the proceedings and follow the evidence and the course of the proceedings.
Further, whilst it is wholly a matter for the defence, the accused’s capacities can be explained to a jury by way of medical evidence akin to that called in this investigation, and such evidence will enable any inaccurate answers given for the reasons outlined by the doctors to be explained as such rather than as necessarily damning admissions.
Conclusion
Bearing in mind these procedural considerations, together with the evidence of each three medical practitioners I find that the accused will be:
a)able to understand and respond rationally to the charge and the allegations on which the charge is based;
b)able to exercise his procedural rights or at least give rational instructions about the exercise of those rights, and;
c)able to understand the nature of the proceedings, and follow the evidence and the course of the proceedings.
Hence the accused is fit for trial within the meaning of s 269H of the Act.