Rex v David Gall - [2024] NSWDC 315

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Gall [2024] NSWDC 315
Hearing dates: 19 June 2024
Date of orders: 25 July 2024
Decision date: 25 July 2024
Jurisdiction: Criminal
Before: Bennett SC ADCJ
Decision:
The Accused is Fit for Trial

Catchwords:
Mental Health Fitness Hearing – Accused’s fitness to stand trial

Legislation Cited:
Crimes Act 1900 S 52A(2), S 52A(1)(c).
Criminal Procedure Act 1986 s 66(1), s 166
Mental Health and Cognitive Impairment Forensic Provisions Act 2020
Road Transport Act 2013 Law part code 79217 S 117(1)(a)

Cases Cited:
Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29
Kesavarajah v The Queen [1994] HCA 41
R v Dellamarta [2020] VSC 745
R v Maxwell [2023] NSWSC 1189
R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7
Reg. v. Presser (3) (1958) VR 45.
Roberts v R [2023] NSWCCA 187

Category: Principal judgment
Parties: David Gall (Defendant)
Rex (Prosecutor)
Representation: Counsel:
Mr Whitaker (Crown)
Mr N Broadbent (Counsel for the accused)
Solicitors:
Office of the Director of Public Prosecutions
Ms. McCarthy (Solicitor for the Accused)

File Number(s): 2023/00161384
Publication restriction: Nil

JUDGMENT

Introduction

David Gall was committed to the District Court of New South Wales for the following offences certified in the Local Court on 6 December 2023:

Sequence H93285414/3

On 19 May 2023, at Bourbah in the State of New South Wales, did drive a motor vehicle, namely, Holden YKZxxx, whilst under the influence of intoxicating liquor, whereby the vehicle was involved in an impact as a result of which the death of Paul Kelly was occasioned, and where the prescribed concentration of alcohol was present in his blood.

S 52A(2) Crimes Act 1900 Law part code 159

Sequence H93285414/1 (in the alternative to the above)

On 19 May 2023, at Bourbah in the State of New South Wales, did drive a motor vehicle, namely, Holden YKZxxx, in a manner dangerous to another person or persons, whereby the vehicle was involved in an impact as a result of which the death of Paul Kelly was occasioned.

S 52A(1)(c) Crimes Act 1900 Law part code 140

Also certified for the District Court presented pursuant to s 166 Criminal Procedure Act 1986 is the following back up offence:

Sequence H93285414/2

On 19 May 2023, at Bourbah in the State of New South Wales, did negligently drive a motor vehicle, namely, Holden YKZxxx, upon a road, namely, Gulargambone Road, and the said driving occasioned the death of Paul Kelly.

S 117(1)(a) Road Transport Act 2013 Law part code 79217

The accused was not arraigned and I was not provided with a form of the indictment proposed. On 25 July 2024 when I announced my decision that I found the accused fit for trial the Crown advised that a bill was found in terms of the charges certified pursuant to s 66(1) Criminal Procedure Act 1986.
It is uncontroversial that the question of fitness may be raised when it was in the prosecution sequence and that there was no need for the accused to be arraigned before the question is considered and determined.
It is also uncontroversial that the question of fitness was raised in good faith.

The Crown Case

The Crown case statement sets out the events from which the charges arise. I have omitted references to the primary documents in which the representations supporting the asserted facts are found.
The accused is aged 63 years and weighed 60-70 kilograms at the material time. He lived in Warren and held a P2 provisional licence.
The deceased was aged age 52 years, was married, and lived with his wife and three children on their farm in Bourbah. He was a sheep classer and worked part time on the farm with cattle and crops.
On 19 May 2023, before the crash, the deceased worked early on the property and returned home about 10:00am for a Zoom call. The call lasted until about 11:30am, after which the deceased with his wife went to another property to collect two trucks, which they drove home in time for lunch. En route, they noticed that some cattle had jumped over a gate. About 3:00pm he left home to secure the cattle. His wife was on a call at the time, which lasted about 1 hour and 20 minutes.
The deceased drove a Quadbike. It had no seatbelt.
In the meantime, the accused drove along Gulargambone Road towards Quambone. He was alone, but he had two border collie dogs in the back seat. He commenced his drive in Warren. He drove a white Holden Rodeo utility fitted with a bull bar.
At 2:22pm, the accused stopped at the Collie Hotel on the Oxley Highway where he was captured on CCTV consuming a schooner of beer. He left there at 2:41pm travelling north. About 3:40pm, he drove past West Point Road, passing a bus travelling in the opposite direction. The bus driver noticed nothing unusual about his manner of driving.
The accused was heavily intoxicated and his driving ability was substantially impaired as a result.
The accused continued driving west towards Quambone, along an unsealed road past rural/farm properties. The speed limit was 100 kilometres per hour. The speed of his vehicle is unknown, but there is evidence that it was in excess of that speed limit.
His approach to the crash site included a very slight right-hand bend in the road and then a straight stretch toward it. The road facilitates travel in both directions. At the place of the crash, it is 4.5 metres wide. The road is bordered by grass and gravel. The weather was fine and the road dry. The deceased was also travelling west on the Quadbike.
About 3:45pm, the accused collided with the rear of the Quadbike approximately in the middle of the road. Road scars were left. The accused’s attention was distracted from the roadway for a couple of seconds as he sought a cigarette in the centre console. He did not notice the quadbike until hearing the sound of the collision.
The deceased was ejected and fell onto the road 24.8 metres north west from the point of collision. The Quadbike came to rest on the southern side of the road, leaning vertically against a tree.
The accused stopped 59 metres away from the point of impact. He observed the deceased laying on the ground. He returned to his vehicle and continued driving west, looking for a property where he would request assistance.
The accused’s blood alcohol concentration was calculated to have been within the range of 0.220 to 0.283 grams per 100 millilitres of blood, with the most likely level about 0.241 grams per 100 millilitres of blood.. He had not consumed a full meal since the afternoon of the day before.
Expert opinion is that the death occasioned by the impact was attributable to the fact the accused was under the influence of alcohol, given the accused’s tunnel vision pertaining to his search for the cigarette and his impaired visual scanning ability.
The Crown contends that the accused’s intoxication affected his assessment of risk when taking his eyes off the road without checking sufficiently for any dangers ahead of him.
About 3:55pm, the accused quicky drove down the driveway of a property nearby off Gulargambone Road. He parked near a shed and alighted.
Jarryd Rae was in the shed at the time and walked over to the accused. He said, “Can I help you? Are you right?” The accused said, “Can you help me, I’ve hit a man on a bike.” Mr Rae said, “Where is he?” The accused said, “He’s laying on the road?” Mr Rae said, “Where abouts?” The accused said, “On the road, about 10 kilometres up the road?”
Mr Rae drove alone to the crash site. His father Stephen was also in the shed. He walked over to the accused. The accused was not stable on his feet. The accused said, “I’ve hit a man on a motorbike. He was just there, and now he is laying on the road and there is no movement.” He had slurred speech and unsteady eyes. This witness told the accused to follow him into the house. The accused drove behind and when they reached the house, this witness invited the accused inside. The accused grabbed a can of XXXX gold beer from the back tray of the utility. Stephen Rae said to him, “You don’t need that beer, sit it in the back of the ute.” The accused replied, “I need it.”
The accused followed Mr Rae inside the house, moments behind him, and sat at the end of a bench. Mr Rae introduced his wife Tracey. and offered the accused a cup of coffee. He said, “No”, opened the can of beer, and started drinking from it.
Stephen Rae phoned Jarryd’s mobile but there was no answer. He left to find the crash scene.
Mrs Rae asked the accused if he was okay. The accused replied, “He just came out and why would he do that; why didn’t he hear me coming”. He repeated these comments, slurring.
Mrs Rae took the accused from the house. At the stairs he stood, looked at them, but refused Mrs Rae’s offer for help, and instead walked down very slowly, swaying at each step trying to balance. He walked toward his car, unable to keep a straight line, and there collected another XXXX gold can, sat on a step nearby, and started drinking from it.
The accused asked Mrs Rae, “Can I have a light?” She replied, “I don’t smoke sorry. Where did you come from? He said, “Warren.” She asked, “Where were you going?” He replied, “Quambone.” She asked, “Do you know anyone there?” He replied, “I have friends at a mission there.” He said he wanted to go home and to himself, “This is the worst decision I have ever made.”
Mrs Rae received a call from Stephen, who told her Paul Kelly had been hit and had died. There were periods of silence as Mrs Rae waited for the Police, during which the accused said, “Am I waiting for the police?” She responded, “Yes we are, this is serious, you’ll need to speak to the police.” He said, “I wanna go home, they can see me tomorrow.” He became agitated. He rose and walked around, leaving the two XXXX gold cans empty on the step. He went for another can and started to open it but Mrs Rae took it from him and returned it to the vehicle, saying he did not need it. He grabbed another can from the back of the vehicle and went to open it. Mrs Rae told him that he was not having any more to drink. She took that from him and returned it. She told him, sternly, he was not going anywhere and was not to have anything else to drink until police arrived.
Mrs Rae saw a neighbour, Josie Jose, drive by. She called him over and asked him to join her so the accused would know she was not alone.
The accused repeated he wanted to go home. He asked for a smoke. Mrs Rae provided a box of matches and he lit a cigarette.
Mrs Rae and Mr. Jose spoke and agreed they must make sure the accused did not leave and would take his keys. Shortly afterwards, Mr. Jose had to leave because of cattle out on the road. Mrs Rae took the accused’s keys from the ignition and put them in her pocket. The accused repeated that he wanted to go home and that police could see him tomorrow. Mrs Rae told him she had his keys and he was not going anywhere until he spoke to police. He said, “Give me my fucking keys and I will run over the lot of you.” She replied, “Well you’re definitely not getting the keys back.”
The accused sat in the driver’s seat. She watched him until Police arrived.
Jarryd Rae found the deceased in the middle of the road, on his left side with his face towards the ground. He checked for a pulse and reflexes but detected none. He had not taken his mobile, and so drove to the property of Annette and Paul Fisher to have them call “000”. He arrived there after 4:00pm, asked Mrs Fisher to call “000”, and said there had been a road accident from which Paul Kelly was gone and ambulance and police were needed.
At 4:18pm, Mrs Fisher contacted her husband Paul and told him of the collision and that Paul Kelly was dead, and at 4:25pm phoned “000” and reported the event.
Jarryd Rae returned to the crash scene in the meantime. Shortly thereafter, Stephen Rae arrived and saw the deceased lying on the road, face down. He believed him to have died. He blocked the road with his car and called “000” and with Jarryd waited for emergency services, and with others took steps to protect the deceased and the scene.
The deceased’s wife completed her phone call and went to collect road signs to warn of the presence of the cattle to be moved the next day. She saw the red and blue lights of emergency vehicles, and returned to her property where Paul Fisher told her of her husband’s death. He drove her to the crash site where she saw the deceased. She stayed until about 7:00m when she returned home to call her daughter, but then returned about half an hour later to the crash site and stayed with her husband until Police arrived. Thereafter she moved out of the way and watched on until the deceased was taken away.
At 5:01pm, paramedics arrived. They rolled the deceased from the prone position onto his back, checked for signs of life, and verified he was deceased.
The deceased had suffered numerous superficial blunt force injuries, predominantly to his head and torso, and a haemorrhage.
Police arrived with the paramedics. Jarryd Rae told them where the accused was, that his mother had taken the accused’s car keys because he was attempting to leave, and returned to the property with two police while another took control of the scene and arranged for specialist crash investigators to attend with State Emergency Services to illuminate the roadway.
Shortly after 5:45pm, Police attended the property where Mrs Rae told them that the accused had consumed two XXXX gold cans since arriving there.
The accused remained sitting in the driver’s seat of the utility, asleep. He eventually awoke and opened the driver’s door, releasing the smell of alcohol from him and the car. His eyes were glossy and slightly bloodshot. There was a can of XXXX gold in the front passenger footwell. A roadside breath test yielded a reading of 0.274. Police arrested him and took him to Coonamble Multi-Purpose Services for mandatory blood and urine samples. They arrived there about 6:45pm, but nurses were unable to draw enough blood for a sample from 7:00pm until about 7:50pm when they were successful. He provided a urine sample. Police took him to Coonamble Police Station and on to Dubbo Police Station.
About 8:30pm, the Crash Investigation Unit arrived at the scene. About 12:30am, the accused’s vehicle was towed away. The quad bike was also collected. About 4:00am, the accused took part in an ERISP and representing the following:

He left from Warren; “I wasn’t really going [driving] anywhere to tell you the truth … I just went for a lap down the backroads”.

Two border collie dogs were in the back seat.

“I looked down and went to get a cigarette and I looked up, I ah, you know just heard a bang.”

The cigarette was in the centre console.

“I just went for a drive today [yesterday] and yeah … Gave me something to do.”

He had been driving for “probably an hour or two”, or left home at “12, 1 o’clock I s’pose”.

“I pulled up at a property when I ah, when I found out I ran over a bloke”.

“I don’t know where he’d come from. He wasn’t there you know, ‘cause it was a straight road.”

“I gave him a bit of a shake and nothing happened.”

He did not call “000” on his mobile because he “can’t use it”.

The road was in a good, dry condition. The sun was not adversely affecting his vision, and visibility was clear.

The mechanical condition of the car was good.

He was previously disqualified for “drunken driving and all that sort of stuff” and that this was “nothing serious”.

Upon whether he had consumed alcohol prior to the crash, he said “No, I don’t think so.”

On 24 May 2023 Police further inspected the Quadbike and the Holden Rodeo in the holding yard. On 8 June, the Engineering Investigation Section examined the Holden Rodeo. The examination revealed no mechanical defect or component failure which may have contributed to the collision occurring.

The Accused’s Fitness

These proceedings are pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 which in Part 4 provides for the determination of a person’s fitness for trial. It is uncontroversial that Part 4 applies to these proceedings.
Part 4 includes the following provisions relevant to the determination of this question S 36 articulates the fitness test:

S 36 Fitness Test
(1)    For the purposes of proceedings to which this Part applies, a person is taken to be unfit to be tried for an offence if the person, because the person has a mental health impairment or cognitive impairment, or both, or for another reason, cannot do one or more of the following—
(a)  understand the offence the subject of the proceedings,
(b)  plead to the charge,
(c)  exercise the right to challenge jurors,
(d)  understand generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged,
(e)  follow the course of the proceedings so as to understand what is going on in a general sense,
(f)  understand the substantial effect of any evidence given against the person,
(g)  make a defence or answer to the charge,
(h)  instruct the person’s legal representative so as to mount a defence and provide the person’s version of the facts to that legal representative and to the court if necessary,
(i)  decide what defence the person will rely on and make that decision known to the person’s legal representative and the court.

(2)    This section does not limit the grounds on which a court may consider a person to be unfit to be tried for an offence.
S 37   When question of unfitness may be raised
(1)    The question of a defendant’s unfitness to be tried for an offence is, so far as practicable, to be raised before the defendant is arraigned on a charge in respect of the offence but may be raised at any time during the course of the hearing of the proceedings in respect of the offence.
(2)    The question of a defendant’s unfitness to be tried for an offence may be raised on more than one occasion in the same proceedings.
S 38   Question of unfitness to be determined on balance of probabilities
The question of a defendant’s unfitness to be tried for an offence is to be determined on the balance of probabilities.
S 39   Court and other persons may raise question of unfitness
The court, the defendant or the prosecutor may raise the question of a defendant’s unfitness to be tried for an offence.
S 44 Inquiry procedures
(1)    The question of a defendant’s unfitness to be tried for an offence is to be determined by the judge alone.
(2)    At an inquiry, the defendant is to be represented by an Australian legal practitioner, unless the court otherwise allows.
(3)    An inquiry is not to be conducted in an adversarial manner.
(4)    The onus of proof of the question of a defendant’s unfitness to be tried for an offence does not rest on any particular party to the proceedings.
(5)    In addition to any other matter the court may consider in determining whether the defendant is unfit to be tried for an offence, the court is to consider the following—
(a)  whether the trial process can be modified, or assistance provided, to facilitate the defendant’s understanding and effective participation in the trial,
(b)  the likely length and complexity of the trial,
(c)  whether the defendant is represented by an Australian legal practitioner, or can obtain representation by an Australian legal practitioner.

(6) A determination by the judge must include the principles of law applied by the judge and the findings of fact on which the judge relied.

Mental Health Impairment and Cognitive Impairment are defined:

S 4   Mental health impairment
(1)    For the purposes of this Act, a ”person has a mental health impairment” if—
(a)  the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and
(b)  the disturbance would be regarded as significant for clinical diagnostic purposes, and
(c)  the disturbance impairs the emotional wellbeing, judgment or behaviour of the person.

(2)    A mental health impairment may arise from any of the following disorders but may also arise for other reasons—
(a)  an anxiety disorder,
(b)  an affective disorder, including clinical depression and bipolar disorder,
(c)  a psychotic disorder,
(d)  a substance induced mental disorder that is not temporary.

(3)    A person does not have a mental health impairment for the purposes of this Act if the person’s impairment is caused solely by—
(a)  the temporary effect of ingesting a substance, or
(b)  a substance use disorder.

S 5   Cognitive impairment
(1)    For the purposes of this Act, a ”person has a cognitive impairment” if—
(a)  the person has an ongoing impairment in adaptive functioning, and
(b)  the person has an ongoing impairment in comprehension, reason, judgment, learning or memory, and
(c)  the impairments result from damage to or dysfunction, developmental delay or deterioration of the person’s brain or mind that may arise from a condition set out in subsection (2) or for other reasons.

(2)    A cognitive impairment may arise from any of the following conditions but may also arise for other reasons—
(a)  intellectual disability,
(b)  borderline intellectual functioning,
(c)  dementia,
(d)  an acquired brain injury,
(e)  drug or alcohol related brain damage, including foetal alcohol spectrum disorder,
(f)  autism spectrum disorder.

The scope of the matters which might render a person unfit for trial are not limited to those which are specifically included in these definitions. S 36(1) of the Act provides that a person is taken to be unfit to be tried because the person cannot do one more of the things set forth in the paragraphs incorporated in s 36(1) because they have a mental health impairment, or a cognitive impairment, or both, or, cannot do so for another reason.
The provision embraces and builds upon the principles found in Kesavarajah v The Queen [1994] HCA 41 approving the judgement of Smith J in Reg. v. Presser (3) (1958) VR 45. These authorities remain relevant to the assessment of a person’s fitness.
The essence of the asserted unfitness is the accused’s deterioration from alcohol abuse. Two neuropsychologists assessed the accused for his fitness to participate in these proceedings, one qualified on behalf of the accused and the other on behalf of the Director of Public Prosecutions. Each provided reports, and before the court gave evidence concurrently, each addressed in turn by counsel upon the issues identified by the parties.
The parties accept the skill, training, and professional experiences of these witnesses.

Dr Sally McSwiggan

Dr Sally McSwiggan was retained on behalf of the accused.

First Report 24 November 2023

On 24 November 2023 she wrote her first neuropsychological report to the accused’s solicitor sought from her upon concerns from interactions with the accused about his ability to properly comprehend and retain advice given in relation to the appropriate plea and for the conduct of a trial should the accused plead not guilty. Specifically, she was asked to address:

Whether the accused suffers from any mental health or cognitive impairments;

Whether those impairments, if present, affect his ability to provide instructions sufficient to conduct criminal proceedings;

Whether those impairments, if present, effect his ability to follow proceedings in the criminal jurisdiction; and

Whether those impairments, if present, require accommodations to be made in order to assist him in providing instructions and follow the proceedings

Dr. McSwiggan was provided with:

A facts sheet;

A custody management record;

A transcript of the accused’s interview; and

A statement of Constable Loughland with a transcript of the accused’s interaction with police

She assessed the accused over 60 minutes by AVL on 31 October 2023 when he was supported by a friend who did not contribute to the process. The friend provided what was said to be a separate informant view by telephone over about 20 minutes on 23 November 2023
Dr McSwiggan explained to the accused:

The nature and purpose of the evaluation for her to prepare a neuropsychological report based on the assessment;

The limits of confidentiality;

Any information provided would not be confidential and could be made available to a wider public if tendered in court; and

Her role as an independent expert.

He seemed to have some understanding of the explanation and consented to continue. She does not further qualify her assessment of his perception of her representations but there is no indication that she had any concerns that the accused did not understand her.
Her extensive qualification and experience were provided. There is no challenge to these nor any submission that she is not qualified to offer her expert opinion.
Dr McSwiggan acknowledged inherent limitations in any cross-sectional neuropsychological evaluation. Her opinions to an extent are based on a cross-sectional assessment of the accused, including the aforementioned primary documents.
She summarised the demographic information:

The accused was a 64-year-old single Indigenous man;

He has lived alone renting in the same residence for the last 10 years.

His income is from Centrelink.

He is one of 12 siblings, was raised in Warren, while they were raised in Bourke, Wilcannia, and Broken Hill.

He was educated to the end of Year 8 and was literate. He read newspapers comparable the Daily Telegraph.

He never married and has no children.

He worked until his mid-50’s in Warren as a drover, driving heavy machinery, and farmhand.

He seemed less sure what he ate for dinner the night before (“cornflakes I think”) compared to his recall of his early history. He knew his rent was direct debited and he paid bills for such as electricity at the post office.

He described his health as good, denied regular medication until this event, he was prescribed a nightly sedative by the Flying Doctor Service to assist with insomnia. He denied having a regular doctor over his lifetime, or hospitalisation. He could not recall any remarkable medical events beyond a “few fights” during his youth.

He denied psychiatric hospitalisations or treatment or contact with community mental health services.

He admitted a history of hazardous alcohol use with “quite a bit of prompting”. He could not (or would not) estimate amounts at first. He admitted to beer and wine use over spirits and could consume a case of beer or 5 litres of moselle over 2 days as standard. He consumed alcohol most days. He gave various accounts of recently ceasing, from 3 months to 6 months ago.

He gave the impression of minimising his alcohol use.

He denied illicit substance use; he is a long-term tobacco smoker.

The accused has a previous forensic history according to his recollection, but this is not further explained.

Upon mental state examination Dr McSwiggan wrote that the accused presented as an older male, casually dressed, reasonably groomed, who exhibited mostly reasonable eye contact, appeared cooperative, and engaged. Conversational speech was mildly slowed in rate and mostly normal in tone and volume. At times there was underlying irritability but he was generally pleasant. He showed limited spontaneous speech, his quantity of speech was generally impoverished. At times he derailed from topic when unable to respond to direct questions. He tended not to admit when he could not provide an answer. He denied a history of delusions, hallucinations, or suicidal thoughts. Objectively he did not appear especially depressed. His outward expression of emotions appeared mildly blunted. Overall he did not present with symptoms consistent with a Major Mental Illness such as severe disturbance of mood or florid psychosis.
Dr McSwiggan performed neuropsychological assessment. by way of the. Wechsler Adult Intelligence Scale-Fourth Edition (WAIS-IV) selected subtests, Wechsler Memory Scales (WMS- IV) selected subtests, Montreal Cognitive Assessment (MOCA). He engaged adequately over the course of the cognitive assessment conducted in one interval. He appeared to be putting forth effort on all measures.
The cognitive testing battery for older persons is flexible and targeted towards evaluating specific (cognitive) domains where neurocognitive or neurodegenerative impairments often manifest.
His premorbid function was estimated on occupational attainment at least in the Borderline to Low Average range (>10th percentile of the population) given his history of employment and tenancy. He was oriented to time and place, could spontaneously recall the Australian PM, could recall a war overseas but not the specifics beyond “Arabians and the others”.
Measures of attention, concentration, and holding information in mind while manipulating it were variable. His basic attention was mildly reduced. His capacity to manipulate information (working memory) was poor. He could not reverse more than three digits held in mind.
His performance on executive functioning tasks was reduced. He could not sustain generating simple ideas under timed conditions. His abstract reasoning was reduced by concrete thinking, unable to evaluate similarities between common items, arguing the differences despite being directed to consider only how they were alike.
Upon assessment of recent memory, which reflects the ability to learn and retain new information, his Immediate Auditory Memory and ability to encode beyond his basic attention span was impaired, able to encode very limited information, in the Extremely Low range (0.1%). After a delay with distractions (20 minutes), he could not recall or recognise the (limited) information.
The accused’s companion, Ross Marks, in a separate interview on a later occasion provided the following:

He knew the accused from 10 years of age, with contact for around the last 40 years, the accused remaining a friend of his family.

He agreed the accused would fit the term ‘a severe alcoholic’ since he has known him. He described the accused’s drinking tolerance as “week long benders” each month for the last 40 years. It was at a level where the accused would be inebriated for days without break, drinking on waking, sleeping in a chair, and not eating. There was no evidence of fresh food bought or prepared by the accused beyond a loaf of bread in the kitchen.

Mr Marks commented upon changes in the accused:

“He doesn’t seem to get it anymore; I keep thinking why is he like that”;

He was less tolerant, less caring, and more irritable than he was, e.g. he described the accused ripping up a form and leaving a medical appointment abruptly recently, unable to tolerate frustration.

Dr. McSwiggan diagnosed the accused against the DSM 5:

A 64-year-old man who presented on cognitive testing with mildly reduced basic attention and disruption of working memory.

Immediate recall of information was impacted, reducing his capacity to encode new information beyond his basic attention level to learn it for later recall.

Memory skills were not fatally disturbed, he was not amnestic where there is rapid (30 minutes) and complete forgetting of new information, as with Alzheimer’s dementia.

Measures encompassing higher order thinking (e.g. problem solving and cognitive flexibility) showed he was inflexible and concrete when trying to find solutions to fairly low-level problems.

His pattern of cognitive loss with a history of hazardous and sustained alcohol use would be characterized as a Minor Neurocognitive Disorder due to (probable) Alcohol Related Dementia. The deficits are limited to a single cognitive domain and appear to not substantially impact on his independent living skills.

Dr. McSwiggan acknowledged that this “probable” diagnosis was without the benefit of medical investigations or a CT brain scan to show levels of brain atrophy (shrinkage). This notwithstanding, the accused’s confirmed history of sustained and hazardous overuse of Alcohol included no partner to ensure adequate nutrition over his adult years.

Dr McSwiggan referred to two main types of Alcohol Related Dementia:

Severe - (Wernicke-Korsakoff’s Dementia; WKD) caused by Thiamine depletion from malnutrition and alcohol’s disruptive effects on brain metabolism, the key feature being an irreversible profound inability to store new memories compared to relatively intact intellect. The striking memory loss for recent events may lead to confabulation, where older events are used as current memories, making communication illogical at times.

The less severe Alcohol Related Cognitive Impairment (ARCI) might have prominent executive deficits in planning, cognitive flexibility, and reasoning (similar to Moderate to Severe Vascular Dementia) but less likely the complete dense loss of recent memory. Memory can be unreliable and inefficient (patchy) but not the dense amnesia of the severe type where the person would neither recall nor recognise episodic information (such as an entire day), even with explicit reminding. Classified as a Severe Substance Use Induced Minor Neurocognitive Disorder by DSM 5, symptoms of ARCI can remit to a degree with abstinence and treatment (Thiamine/ Nutrition) in contrast to the permanence of WKD, a Major Neurocognitive Disorder.

Upon the features consistent with executive deficits on a background of severe alcohol overuse for decades, the reliability of which depends upon accepting the representations by the accused and his companion, Dr McSwiggan is of the opinion that the accused would meet the DSM 5 criteria for Severe Substance Use Induced Persistent Minor Neurocognitive Disorder.
Her use of the term “Minor” does not indicate minor impact. Major in this context would mean the severe type (Wernicke-Korsakoff’s Dementia) where a person is more likely than not become incapable of caring for themselves safely and properly in the community, probably requiring substantial support and would benefit from accommodation in a residential facility.
The accused, an older Indigenous man, presented to Dr McSwiggan with no medical history. Dr McSwiggan suggested that it could be speculated that the accused’s presentation could be, in part, also related to untreated chronic vascular diseases (query Hypertension, query raised Cholesterol, query Diabetes) that may have impacted on the small vessels of his brain over time. This would contribute to the cognitive deficits seen in a Mild Alcohol Related Dementia as both conditions are quite static and encompass mainly executive functions while other cognitive domains remain relatively intact. She referred to studies to support this speculation and noted the content of the fact sheet (not further described) and the custody management record of 19 May 2023 from 8.20pm wherein it was recorded that the accused was considered to be inebriated.
There is no evidence that this speculation was investigated.
Dr McSwiggan noted the transcript of his interview conducted at 4:00am the next morning. She at this stage had not seen the electronic version. She noted the statement of Constable Loughland with a transcript of the accused’s interaction with police, and the reading from a road side alcohol breath test.
Dr McSwiggan referred to s.36 Mental Health and Cognitive Impairment Forensic Provisions Act, and the criteria for a person taken to be unfit to be tried for an offence because of mental health impairment or cognitive impairment, or both, or for another reason, if they cannot do one or more of the following;

understand the offence the subject of the proceedings,

plead to the charge,

exercise the right to challenge jurors,

understand generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged,

follow the course of the proceedings so as to understand what is going on in a general sense,

understand the substantial effect of any evidence given against the person,

make a defence or answer to the charge,

instruct the person’s legal representative so as to mount a defence and provide the person’s version of the facts to that legal representative and to the court, if necessary,

decide what defence the person will rely on and make that decision known to the person’s legal representative and the court.

She noted additional considerations set out in section 44(5) of the Act:

In addition to any other matter the court may consider in determining whether the defendant is unfit to be tried for an offence, the court is to consider the following—

whether the trial process can be modified, or assistance provided, to facilitate the defendant’s understanding and effective participation in the trial,

the likely length and complexity of the trial,

whether the defendant is represented by an Australian legal practitioner or can obtain representation by an Australian legal practitioner.

Dr McSwiggan wrote that when the accused was directed to the proceedings:

He was aware his charge was “driving causing death” around 6 months ago;

He agreed he had been to court before;

He recalled he had discussed his case with his lawyer and had made no decisions;

He was of the view his lawyer would run the matter;

He did not feel able to provide instructions beyond “not guilty”;

He understood the pleas available and their definitions;

He had some understanding of a trial and its purpose, to determine whether or not he was guilty;

He spontaneously said he was aware there would be witnesses and a judge;

He was aware of the role and purpose of the judge, his lawyer, and the prosecution;

He was not aware that his lawyer could only act on instructions, and could not run the matter based on what the lawyer thinks would be in his best interests;

He understood a jury was made up of “6 or 8” people that have a role in decisions about guilt;

He could not express a view about jury challenges after the concept was explained;

He could not consider or reason about potential bias associated with his matter;

He was unable to provide specific examples of evidence despite having some understanding of the concept;

He understood the evidence in his matter was “what happened”;

In response to specific questions about the type of evidence used from car accidents he described his recall of the events.;

After priming him about his car and the bike of the deceased, further questioning about what evidence the prosecution might rely on to prove their case did not elicit any more information from him and he repeated his version of the facts;

He agreed the police have photographs of the scene, his car, and the bike;

He was unable to reason why there were photographs of the deceased’s bike in his documents;

He agreed the bike photographs were evidence but did not know why or how this could be used for or against him in his matter;

He agreed he underwent blood tests and did not believe there was any evidence against him based on the results;

His version was highly inconsistent with the statement of the attending officer.

The opinion given in the report is that the accused at the time of the evaluations, on balance, could not satisfy the minimum criteria specified in the Act and accordingly could be considered as unfit, and, having regard to Section 44(5) of the Act, there is no way to modify or assist him to facilitate his understanding and effective participation in a complex legal proceeding.
The reasons for the opinion are:

Cognitive impairment provides an explanation for the accused’s unfitness;

His presentation and scores on cognitive measures showed he performed in the range of impairment for executive skills, consistent with a Minor Neurocognitive Disorder due to (probable) Alcohol Related Dementia;

His capacity to enter a sensible plea, make an able defence or answer to the charge will be limited by his impoverished account and inconsistencies around alcohol consumption evidence;

He failed to demonstrate he could appreciate the likely substantial effect of the evidence against him;

He remained unaware of how any evidence may be used for or against him;

He could provide his version of the facts to a legal representative and to the court if necessary but would be limited to a few sentences and not consistent with the facts;

Should he continue to fail to recall or accept the evidence around the charge and not be able to explain its impact, he would be incapable of sensibly reasoning about his plea decision;

He would take a passive approach towards instructing a legal representative, wishing his lawyer to take over and help him to mount a defence;

He would not be capable of properly following the course of a trial proceeding with any level of complexity so as to understand what is going on given his limited capacity to encode new information;

A support person could assist him in simple proceedings but this matter is likely too complex for ‘support’ to overcome his deficits.

In response to specific questions posed to Dr McSwiggan she wrote of the accused:

He suffers Severe Substance Use Induced Minor Neurocognitive Disorder and will have problems reasoning when presented with decisions due to his executive deficits impacting on his capacity to thinking flexibly, appreciate and properly recall his own situation and sensibly weigh information when making choices. The consistency of his decisions could also be variable, prone to concrete thinking, he may default to ‘best outcome’ rather than maintain a decision he cannot properly reason about and hence tolerate.

He will be a ‘passive’ participant given he will more likely than not fail to encode sufficient education and advice given the complexity of the proposed trial matter in order to grasp the important elements. In addition, this will manifest as a limited capacity to provide instructions sufficient for a trial with some complexity.

There has likely been a period of attempting to educate the accused about his matter and the elements; he appeared to fail to accept some evidence which seemed cannot be overcome with repetition; he appeared to be basing his legal decisions without the capacity to appreciate his circumstances in relation to this matter given the available evidence.

Supplementary Report by Dr Sally McSwiggan 6 January 2024

Upon the request of the accused’s solicitor Dr. McSwiggan provided a supplementary report on 6 January 2024, also included in the tender bundle, to be read in conjunction with the report of 24 November 2024.
This report was sought upon the disclosure of evidence of the accused’s blood alcohol concentration about the material time, not available until after her assessment of the accused. Dr McSwiggan reviewed the report of Mr Alen Lin, Pharmacologist, the NSW Police Force Impaired Driver Research Unit dated 15 September 2023.
Dr. McSwiggan interviewed the accused once again for this report via AVL on 16 January 2024 for 20 minutes, during which he was supported by Mr Marks who attended on the earlier occasion but who did not contribute to the process.
Dr. McSwiggan repeated the caveat given in her first report that there are inherent limitations in any cross-sectional neuropsychological evaluation, and that her opinions are to an extent based on a cross-sectional assessment of the accused. From Mr. Lin’s report Dr. McSwiggan noted:

The accused’s blood alcohol concentration was recorded as 0.225 grams per 100 millilitres of blood at 7.59 pm, after the collision at 3.45pm, leaving the impression was his driving ability at the time of the collision would have been “very substantially impaired”.

This as I understand the evidence is Mr Lin’s opinion rather than an impression.

The material tendered in the hearing did not include the report from Mr. Lin or the specification of the blood alcohol level upon analysis of the sample taken at 7:59pm. The Crown Case Statement specified a reading of 0.274, which I understand to be a reading of grams of alcohol per100 millilitres of blood, and that the blood sample was not taken at 7:50pm. The Crown Case Statement does not specify the result of the analysis of that sample. The time difference between 7:59pm offered by Dr. McSwiggan and 7:50pm in the Crown Case Statement might be the result of one or other of the authors striking the wrong key.

Referring once more s.36 and s 44(5), Mental Health and Cognitive Impairment Forensic Provisions Act, Dr. McSwiggan attributed to the accused that he no recall of his lawyer having told him about the blood alcohol concentration evidence.

Dr. McSwiggan described the results to him and compared the extent to which his blood alcohol concentration was over the “legal driving limit” to aid understanding, but in response to questions about the evidence, he “repeatedly” reported that he did not drink to excess before the accident and his blood alcohol results were from his consumption of “a few drinks after”. When pressed with the proposition that the number of drinks he described would not fit with the blood alcohol concentration, the accused said the evidence was wrong and he did not accept it. Despite “multiple attempts” he would not shift his view and maintained the drinks he consumed post-accident and shaking, shock caused his raised blood alcohol level.

The accused said he was still planning on pleading not guilty for he does not accept that the blood alcohol concentration evidence would substantially impact upon his defence and he was not intoxicated at the material time.

Upon this material harvested in the 20-minute consultation, Dr. McSwiggan offered her opinion:

At the time of the evaluation, on balance, the accused still could not satisfy the minimum criteria and accordingly could be considered as unfit, and having regard to Section 44(5) of the Act, based on the evaluation, there is no way to modify or assist Mr Gall to facilitate his understanding and effective participation in a complex legal proceeding.

Her reasons for her opinion are:

His capacity to enter a sensible plea, make an able defence or answer to the charge will be severely limited by his lack of insight around the alcohol consumption evidence.

He fails to demonstrate appreciation of the likely substantial effect of the evidence against him, lacks awareness of how this evidence will be used against him in a trial, and does not accept he could be wrong about this, demonstrating concrete thinking, that borders on the irrational, consistent with the cognitive impairment induced by his severe alcohol misuse disorder.

The accused’s cognitive impairment is more likely than not permanent.

There is no real likelihood that the accused will become fit in the next 12 months based on the severity of his cognitive impairment, with no real prospect of voluntary remission of alcohol and treatment.

Dr McSwiggan saw the accused for 20-minutes via audiovisual link on 16 January 2024, to further address whether the information regarding his blood alcohol concentration at the material time impacted upon her opinion regarding his fitness. She maintained that the accused was unfit to stand trial on the basis that his ability to enter a sensible plea, make an able defence or answer to the charge, or appreciate the substantial impact of the evidence against him was ‘severely limited by his lack of insight around the alcohol consumption evidence.’ It was considered that while many individuals with mild neurocognitive disorder related to alcohol do make modest improvements, as he is unlikely to voluntarily cease alcohol and improve his nutritional intake, his deficits are more likely permanent.

Further Supplementary Report by Dr Sally McSwiggan 11 June 2024

Dr McSwiggan provided a third report on 11 June 2024 upon instructions as to:

Whether a review of the ERISP video (as opposed to reading the transcript) changes her opinion on the accused’s diagnosis and fitness;

Her main areas of agreement and disagreement with the report of Ms Barhon

She relied upon the limited consultations conduct prior to her first and second reports.
She reviewed reports of Ms Barhon of 2 April 2024 and 5 June 2024 and the electronic recording of the accused’s police interview.
After reiterating her obligations as an expert witness she wrote regarding the ERISP that the accused’s appeared blunted and at times inappropriate to the circumstances, presented as superficial, expressing disappointment about his car being a write off, with a smile.
She identified areas of agreement with Ms Barhon:

Mr Gall has a diagnosis of Minor Neurocognitive Disorder. The Major variant would be consistent with functional impairment to the degree he would require formal care. Unlike most neurodegenerative disorders, the decline in alcohol related dementia is not progressive or inevitable. It can be a stepwise decline into Korsakoff’s Dementia (the Major variant).

His irritability, agitation, apathy, and depressed cognitions are the predominant neuropsychiatric consequences of alcohol related brain damage. There was no evidence Mr Gall was deliberately trying to embellish or reduce his effort to avoid legal proceedings.

She identified areas of disagreement quoting the identified passages from Ms Barhon’s report and offered comment:

“a. [The accused] was able to articulate his reasoning for pleading not guilty, in that he intended to do so as he believed the incident had purely been an unfortunate accident as a result of a momentary lapse in attention to the road by both parties (himself and the deceased).”

His version is not an evaluation of his reasoning.

Based on decision-making capacity literature

Evaluation of reasoning requires enquiry into how the person reached the decision, what elements they considered as having importance, and how did they go about balancing those things.

Her evaluation of the accused’s reasoning indicated he viewed the evidence as having little to no importance for his case, so he gave it little to no weight when considering his decision.

His reasoning was impacted by impaired insight.

She cited the article McSwiggan, S., Meares, S., & Porter, M. (2016). Decision-making capacity evaluation in adult guardianship: a systematic review. International Psychogeriatrics, 28(3), 373-384. tendered on the hearing. She continued:

“Insight manifests when it is related to something. It cannot be expressed without having something to have insight into. In decision making capacity literature it is often referred to as the ‘appreciation’ element (choice, understanding, appreciation, reasoning).
Self-awareness is the most complex of level of insight. It is a higher-order level of thinking, requiring meta-representations, the ability to consider alternative perspectives and engage in non-pathological self-reflection. Defined as the ‘reasonable or realistic perception or appraisal of a given aspect of one’s situation, functioning or performance, or of the resulting implications’, it can be expressed implicitly or explicitly.
Based on my previous evaluation, the accused demonstrated grossly impaired insight in relation to the substantial impact of the evidence as a result of his inability to accept or believe the feedback he was given in order to consider alternative perspectives. In addition to his distorted, pathological capacity for self-reflection, his responses showed a failure to accept or believe the evidence of his blood alcohol concentration and that he “can’t be wrong” about this. His denial of the BAC results showed his beliefs surpassed wilful obstinance.
Deterioration in insight occurs in numerous neurocognitive and psychiatric conditions (e.g. Schizophrenia, Anorexia Nervosa, Strokes, Moderate to Severe Traumatic Brain Injury, Alzheimer’s, Frontotemporal Dementia, Alcohol Related Dementia etc). It also fails to develop in some neurodevelopmental disorders such as Autism Spectrum Disorder and Intellectual Disability. No single neuropsychological test, cognitive domain or psychiatric presentation consistently predicts impaired insight, and there is no single cause. Contributions from organic brain damage (often related to disruptions in frontal regions and limbic system connectivity), psychiatric manifestations (delusions, paranoia, mania, depression, apathy), personality traits, culture, environment, and past experiences correlate to variable degrees.
[The accused’s] insight has deteriorated as a result of the cognitive and neuropsychiatric impacts of alcohol related brain damage. He fails to realistically appraise the substantial impact of evidence (appreciation) in relation to himself and case. So, he considers the evidence has little to no importance, giving it little weight, if at all, when evaluating his options or inferring how his choice will impact on himself and others (reasoning).”
b. “When asked what impact all these bits of information could have, he remarked “a fair bit I’d say…. If they’re going against me, can’t be good”.”

This indicated that his evaluation of the substantial impact of the evidence was unrealistic. Based on the facts, the blood alcohol concentration test results, and witness evidence, do, and will, quite clearly go against him.

c. His refusal to accept the evidence that he was intoxicated with alcohol (beyond one schooner of beer) at the time of the incident – which would implicate himself as guilty if he did acknowledge this fact - does not equate to an inability to reason.

His refusal to accept the evidence, due to the cognitive and neuropsychiatric impacts of alcohol related brain damage rendering his perception of the impact of the evidence and the implications as unrealistic, does result in an inability to properly reason. He dismisses the evidence as an important element when weighing up his choices.

d. As previously stated, Mr Gall’s refusal to acknowledge further alcohol consumption prior to the incident does not demonstrate a lack of memory or understanding (as appears to have been previously suggested), as it could be equally explained as a rational decision to not implicate himself as guilty when his current intention is to plead not guilty.
The accused’s firm belief is there is no evidence that implicates him as a result of his impaired insight given his unrealistic appraisal of the evidence, which becomes irrational (mistrust of existence) when his beliefs are challenge. Given the strength of the evidence against him, his ‘refusal’ would appear to make the likelihood his decision can be explained as balanced, extremely unlikely.

Dr McSwiggan concluded in summary: due to the effects of alcohol related brain damage, the accused lacks the capacity to understand the substantial effect of the evidence that will be given against him, which has more likely than not resulted in the choice of defence he plans to rely on, without comprehending the impact or implications.
It must be that the opinions offered rest upon her acceptance that the representations made by the accused to her were according to his perception accurate and truthful. I am not persuaded that she gave sufficient attention to the accused’s representations to assess whether and to what extent they were reliable or self-serving.

Ross Marks

There is no evidence from the accused in the proceedings, but filed and read is the affidavit by Ross Marks of 5 June 2024. He is the accused’s friend who supported him when he attended neuropsychological assessment, in which he made no contribution other than to be present. He was not required for cross examination. He states that:

He is a long-term friend of the accused from when Mr Marks between the ages of 14 and 16 years moved to live with him.

When he was 19 years of age Mr Marks married and lived elsewhere, later to be joined by the accused until he moved to Queensland. The accused later moved back to Warren in New South Wales, and they continued contact.

Wherever Mr Mark and his wife lived, the accused would come and stay with them in their home.

Regarding a medical history:

He knows of no medical diagnoses aware that the accused tends to stay away from doctors.

The accused had car accidents when in his twenties and thirties.

He does not think the accused was hospitalised.

He is aware the accused was assaulted in gaol “a few times” but does not know the severity.

Regarding history of alcohol use:

The accused has always been a big drinker from when he was in high school including after work.

He is a “binge drinker” – drinking alcohol for days and then abstaining for a day or two before beginning again.

He frequently went to the river with others in Warren and drink “goons.” I accept this to be a usage representing flagons of wine.

His consumption of alcoholic drinks could extend to eight litres in a day and the past four years it has increased. He drinks twenty four of thirty days each month. His binge sessions increased to two to three times a month.

His diet was inadequate when he was drinking.

He lived alone in a one-bedroom flat described as “half clean” to facilitate his lack of memory where his things might be place. He had two dogs which left hair throughout.

There were changes:

His food intake reduced from 2019.

Since 2019 he is more forgetful. He stares blankly without knowing what to do or say and utters “um” frequently.

Around summertime last year, which could have been either early or late 1923, which is not made clear, the accused called to say he would come to visit the following day, but when Mr Marks called back the accused had forgotten and was drinking.

Twice during the summer last year, which again could have been early or late in 2023, the accused was driving to visit Mr Marks and called on en route to ask where he was. On one occasion he drove to Canowindra, and on the other Cudal.

His memory for events in his childhood are disappearing.

He loses items around his house. He lost his car keys a number of times. He has forgotten his reporting obligation under his bail, but Mr Marks was able to get him to the police station in time. On occasions a neighbour has reminded him.

The accused calls Mr Marks after his conferences with lawyers to ask what he said about the last time he called to discuss what occurred in conference. He reports that he does not understand what the lawyers told him.

No matter how many times things are explained, his story remains the same. He appears to remember one line which he repeats.

Over the last five years he has shown increasing frustration, anger, and appears to be overwhelmed, such that he cannot be around people.

On an occasion after complaining that coffee from a fast-food outlet was too hot, he threw it out the window. I infer this was from a vehicle.

There is an example of his anger when he would not accept advice from Mr Marks regarding the replacement of a gasket in a car engine.

He is 40% of the person he once was.

Roisin Frances McCarthy

Roisin Frances McCarthy provided an affidavit on 6 June 2024 offering her description of observations made of the accused in her interactions with him as his solicitor retained in the present matter. She has had carriage of the proceedings on behalf of the accused since June 2023.
The Crown did not require her for cross examination.
I do not accept her as an expert witness, notwithstanding that she provides a history of representing clients with cognitive impairments and has in the past raised the issue of fitness. She has no qualifications upon which to draw for an opinion regarding the accused’s fitness, however her evidence is admissible as direct evidence of her observations of him when in her presence and when communicating in response to the prosecution evidence she produced to him. The observations might provide a basis for inferences as to the accused’s capacity which are implicit in the affidavit:

She met with the accused four times; 31 August 2023, 14 September 2023, 31 October 2023, and 16 January 2024. The consultations were from 20 minutes to 60 minutes. Present were another solicitor from the Aboriginal Legal Service and Mr Marks. She has also had a number of telephone conversations with the accused.

During the meetings she spoke with him about the brief of evidence and on 31 August 2023 at his request she provided him with a copy of it.

During the conference on 14 September 2023, she read to him some of the key parts of the evidence anticipated from civilian witnesses, attending police, and from his electronically recorded interview. She does not describe the specific representations read.

The accused was adamant that the evidence read was wrong, contrary to his version of events, maintaining he was not intoxicated at the time of driving the vehicle, he would regularly interrupt repeating his version particularly in relation to how much alcohol he had to drink before and immediately after the collision.

He appeared to struggle to appreciate how the evidence was to be used against him and would easily become irritated and frustrated when discussing the evidence.

When the Crown served evidence of his blood alcohol level it was brought to his attention, but he maintained his version and did not appear to comprehend how the evidence impacted upon it.

Ms McCarthy identified characteristics from which she inferred that he had difficulty with his memory:

From early on he had difficulty remembering her.

He had difficulty remembering where his matter had reached in the court and when listed the purpose for it. In a telephone contact on 28 August 2023, he asked what the charges were and whether he would be sentenced on the next date. In conference on 14 September 2023, he had trouble reading the brief, forgetting what he had read upon turning to the next page.

Following the conference on 14 September 2024 Ms McCarthy arranged for the consultation with Dr McSwiggan.

Ms McCarthy offers her impression that the accused’s instructions are inconsistent with a complete understanding of the evidence against him.

Ms McCarthy offers that the accused would have difficulty participating in the trial process, following the evidence, and providing instructions throughout.

Lucienne Barhon

Lucienne Barhon provided reports upon her assessment of the accused. The first report was countersigned by Dr Susan Pulman, also a neuropsychologist. Both are employed as in the entity styled Dr Susan Pulman & Associates, Forensic Psychologists & Clinical Neuropsychologists.
Ms Barhon’s provided her curriculum vitae in a separate document. As with Dr McSwiggan there is no suggestion that she does not have the training, skill, and experience to provide her opinions.

First Report 2 April 2024

The first of her reports was on 2 April 2024 with responses to the opinions offered by Dr McSwiggan’s reports on 24 November 2023 and 16 January 2024.
She interviewed the accused in person in Dubbo on 20 February 2024 for a period of three and a half hours, including a 15-minute break. Ross Marks accompanied the accused and was interviewed independently.
She conducted a further interview by audio video link on 27 February 2024, lasting 75 minutes. The accused said that he attended this appointment independently arriving by public transport.
Ms Barhon had the following documents:

Brief of evidence (documentary only);

The charge certificate;

A certificate pursuant to s 166 Criminal Procedure Act 1986;

The Crown Case Statement;

The report of Dr McSwiggan of 23 November 2023 and her supplementary report of 16 January 2024;

Criminal History;

The video recorded interview of the accused on 20 May 2023; and

Body Worn Camera Footage of the accused on 19 May 2023 (two videos).

Ms Barhon sought Neuropsychological test data from Dr McSwiggan but understood she was unwilling to disclose this information.
The accused presented as an older man with a weathered sun damaged appearance, of fair complexion with blue eyes and short grey hair, dressed in tattered casual clothing and a cap. He maintained good eye contact but had a paucity of facial expressions. Ms Barhon observed:

The accused presented differently to Dr McSwiggan and Ms McCarthy. To Ms Barhon he presented as disgruntled at having to attend the assessment as a result of the alleged offence. Though willing to participate, he was often dismissive and prickly and needed to be regularly encouraged to elaborate and expand on his responses. This typically resulted in more comprehensive information about his history and understanding. At times it was evident that he was unwilling to divulge certain information (rather than being unable to) and became agitated with attempts to explore further details. During formal testing he intermittently required encouragement to persevere, and for some tasks it was apparent he was not putting forth his best efforts.

The accused spontaneously remembered Ms Barhon on the second interview, a week later, the purpose of the assessment, and the general content of their previous interaction.

His speech was fluent and normal in rate and tone. He spoke in simple language commensurate with his reported background history. While receptive language was preserved, it was evident he had at least a mild hearing impairment, needed information to be conveyed in a loud and clearly enunciated voice, and on several occasions needed things repeated due to mishearing. He did not bring his reading glasses to the assessment but conveyed that the stimuli were large enough, and that this did not impact his participation. There was no indication that he struggled to see task stimuli.

The accused as reluctant to discuss his recent mood, although conveyed heightened stress and anxiety since the collision in May 2023, most predominantly recurrent distressing thoughts and dreams upon his vivid recollection of seeing the deceased’s body after the incident.

The Accused’s Background

The accused correctly recalled being “63 or 64” years of age and identifies as an Indigenous Australian. He was born and raised around Warren by his maternal grandparents; his mother was under 16 years of age when he was born.
His parents’ relationship was de facto. They always lived elsewhere such as in Broken Bay and Cobar. He had little contact with his parents throughout his life, seeing them a handful of times when they came to visit. His relationship with his grandparents was good and harmonious. He had approximately ten siblings. He had “nothing much to do with them” and apparently did not live with any of them. He grew up with various other members of his extended family living close by. He continues regular contact with relatives who live nearby.
The accused lives in Warren, in a one-bedroom private rental unit. He denied issues with living independently, aside from not having a driver’s licence. He primarily relied on others for transport to appointments but otherwise caught public transport independently, such as on the second occasion he was assessed when he reported independently catching public transport to Dubbo to attend the appointment.

. Education and Employment:

The accused was reluctant to discuss in detail his school history. He attended Warren Public School; he disliked school. He denied learning difficulties; he learned to read and write; however, was generally ranked bottom of the class. He was unsure but suspected he had had repeated grades. He progressed to Warren High School but had often truanted and had not participated in learning. He left school at the earliest possible age; which he estimated to be Year 8 when 15 or 16 years of age, although he was not sure. He denied difficulties with the social aspect of school and made friends easily.
After leaving school he was employed droving and caring for sheep on various properties on and off for 30 years when not in custody. He was incarcerated numerous times from early adulthood until his 40’s for driving offences including “drink driving”. He received Centrelink benefits for many years due to “unemployment”. He retired five to ten years ago because he was too old for the physically demanding work but continued to do casual work now and then.

Relationship History;

The accused had not married and had no dependants. His one serious relationship about 20 years ago lasted 12 to 18 months.

Alcohol and Substances

The accused had a 50-year history of smoking 10 to 15 cigarettes per day, denied any and all history of illicit substance use, and was evasive about his alcohol use, giving the impression he was minimising its extent.
With encouragement, he said he began drinking almost exclusively beer when about 14 years of age. He had a lifelong pattern of drinking beer typically once per week but later remarked, “if I want to have a beer I have it”. He was reluctant to estimate the quantity of alcohol he would drink, but at one point indicated he would consume “half to a full carton of XXXX Gold” once per week. He denied ever drinking on a daily basis.
He reported that after the collision he ceased drinking alcohol. He was compelled via the Royal Flying Doctor Service to have regular contact with a Drug and Alcohol practitioner who visited him approximately fortnightly. He felt this was unnecessary. He reported good appetite and ate regular daily meals he prepared.
Ms Barhon noted in the report of Dr McSwiggan of 24 November 2023 that the accused disclosed to her a pattern of drinking ‘most days’ and could consume ‘a case of beer or five litre Moselle over two days as standard intake’, and that his long-term friend Mr Marks described the accused to have been a ‘severe alcoholic’ over the forty years they had known each other, and ‘could be inebriated for days without break’ and that he was not eating adequately.

Medical History

The accused said he was generally well and healthy throughout his life, rarely needed a doctor, and never had regular medications before the collision.
The reported significant history was of multiple brawls at the local pub when intoxicated. He had not sought medical attention after these, but acknowledged he had likely been concussed multiple times. I incident about 25 years ago where he was more severely assaulted and thrown through a window, after which he attended hospital for stitches to a scalp laceration. He described no persistent post concussive symptoms following these events.
The accused sustained injuries to his right arm and ribs after coming off his motorbike about 30 years ago. He did not recall sustaining a head injury on this occasion.

Mental Health History

The accused said he had no history of any mental health symptoms and had never seen a mental health professional. He denied any history of depressed mood, anxiety, suicidal ideation, or symptoms of psychosis.
He reported that after the collision in May 2023, he experienced marked deterioration in his mood, feeling “down all the time” with recurrent distressing thoughts and dreams about the collision. He remarked, “if you’d seen what I’d seen, you’d be in a padded cell in Orange Hospital” and acknowledged that he vividly recalls certain details such as going over to the deceased’s body and observing his injuries. He described intrusive thoughts about the collision “all the time” and woke up to six times per night from nightmares. Shortly after the collision he attended his GP who prescribed a “sleeping tablet, 15mg” which he continues to take nightly. This improved his sleep; and he now typically wakes only twice per night.
He said his reluctance to discuss the details of what happened was due to it bringing distressing thoughts and images to mind. He was averse to the suggestion that he seek further support for his mental health symptoms, remarking that if he needed to talk to someone, he would confide in those close to him, like his aunt. He was unwilling to discuss his recent mood and symptoms in further detail.

Forensic History

His forensic history, so described, including references to his criminal history I do not bring to account in the decision I must make, except to the extent that he held the perception that he was at risk of its use against him in the proceedings. He reported an extensive history of driving related offences, including numerous charges of “drink driving” dating back to his late adolescent years, and for which he had served time in custody. He expressed his belief that his criminal history would be used against him in the current matter as it establishes a pattern of driving related offences, including driving while intoxicated. The supplied criminal history as summarised was extensive.

Document Review

First Report of Dr McSwiggan dated 24 November 2023:

Ms Barhon discussed Dr McSwiggan’s first report and that the accused was interviewed and assessed by her via audio visual link for a period of 60 minutes on 31 October 2023, separately interviewing his support person, with a further 20 minutes spent with the accused later,. The history attributed to the accused was of sustained hazardous alcohol use ceased approximately three to six months before. Dr McSwiggan administered a brief set of cognitive tasks. He was oriented to time and place and could recall some current affairs. Immediate attention was ‘mildly reduced’ and working memory was ‘poor’. He struggled with a verbal abstract thinking task and generating words that start with a particular letter. His memory appeared impaired due to poor encoding of information, but he was not considered forgetful. Ms Barhon wrote,

Based upon the available information it was considered he had a diagnosis of ‘Severe Substance Use Induced Persistent Minor Neurocognitive Disorder’ – this meaning his cognition was only mildly reduced and does not impact upon his everyday functioning in a significant way. It was also suggested that his condition could relate to an underlying ‘untreated chronic vascular diseases’. Dr McSwiggan later indicates his diagnosis to be ‘Minor Neurocognitive Disorder due to (probable) Alcohol Related Dementia’ due to his presentation and scores on (brief) cognitive testing which showed impaired executive skills.

Ms Barhon writes that it is of note that the diagnosis Dr McSwiggan gave, which adheres to the ICD-10-CM labelling, is correctly classified as ‘severe alcohol use disorder with alcohol-induced mild neurocognitive disorder, persistent’ (F10.288). Further, although Dr McSwiggan indicated that this diagnosis is not ‘minor’ as the title implies, to achieve this diagnosis it must be reiterated that there is only mild objective decline on neuropsychological testing and that these deficits do not have any meaningful impact on everyday functioning.
Dr McSwiggan further concluded that the accused, on balance, ‘could be considered unfit’ as he did not meet the minimum criteria (as per s36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020), and that no modifications could be made to facilitate his participation in a trial.

Supplementary Report by Dr Sally McSwiggan – dated 16 January 2024

Ms Borhan commented upon the 20-minute interview of the accused by Dr McSwiggan leading to this report and that she maintained her previously expressed opinions but noted that Dr McSwiggan indicated that he suffered from only mild neurocognitive disorder, which according to Ms Borhan would equate to modest decline on formal testing that does not impact upon the person’s everyday functioning.

Expert Report by Alen Lin (Pharmacologist) dated 15 September 2023;

The accused’s calculated most likely blood alcohol concentration at the time of collision was 0.241 grams of alcohol per 100 millilitres of blood. Further, at the time of driving, the accused was under the influence of alcohol to the extent that his driving ability was very substantially impaired.
This level of blood alcohol concentration would have resulted in ‘gross impairment of driving ability including impaired perceptions, divided attention, visual scanning and peripheral vision, vigilance, mood, and reaction skills; flushed face, irritability, slurred speech, unsteadiness, and clumsy movements, all consistent with the effects of alcohol. His sleeping in the car is consistent with the CNS depressant effects of alcohol and contrary to the accused’s belief he was not feeling fatigued.

Neuropsychological Assessment;

Ms Barhon administered the following:

ACS Test of Premorbid Functioning;

Addenbrooke’s Cognitive Examination – Third Edition (ACE-III);

Test of Memory Malingering (TOMM);

Weschler Adult Intelligence Scale – Fourth Edition (WAIS-IV) – select subtests; Weschler Memory Scale – Fourth Edition (WMS-IV) – select subtests; California Verbal Learning Test – Third Edition, Brief Form (CVLT-3-BF); Rey Complex Figure Test; Trail Making Test;

Delis Kaplan Executive Functioning System (DKEFS) – select subtests; Wisconsin Card Sorting Test; Depression Anxiety and Stress Scale – 21 item version (DASS-21).

These were patently more extensive than the tests administered by Dr. McSwiggan.
Ms Barhon provided a table of descriptive labels and associated percentile rating against which to compare the results of the tests administered:

Percentile Rank

Classification

≥ 98th

Very Superior

91^st - 97th

Superior

75^th – 90^th

High Average

25^th – 74^th

Average

9^th – 24^th

Low Average

3^rd – 8^th

Borderline

<3^rd

Impaired

Percentile Rank	Classification
≥ 98th	Very Superior
91^st - 97th	Superior
75^th – 90^th	High Average
25^th – 74^th	Average
9^th – 24^th	Low Average
3^rd – 8^th	Borderline
<3^rd	Impaired

Premorbid intellectual functioning:

On an irregular word reading task designed to provide an estimate of premorbid functioning, the accused performed at the low end of the Low Average range (i.e. around 10th to 15th percentile) consistent with his reported level of educational and occupational functioning.

Global cognitive screening task (ACE-III):

The accused scored 65/100, below the recommended cut-off for suspected major neurocognitive disorder (normal range score ≤82).
The normative sample on which the cut-off was based was a small sample of 53 healthy older adult controls with an average of 14 years of education, and therefore is not representative of individuals with the accused’s background. He lost points across all subdomains of this measure, but most significantly on the memory and fluency subdomains. The memory domain is not based upon purely recall measures, but rather bases a portion of marks to encoding of information and some points for knowledge of facts (such as naming the current NSW Premier).

Attention and working memory:

The accused’s Immediate span of attention was intact, scoring in the Average range; he could reliably hold sequences of up to five pieces of information in mind. On two similar tasks of working memory, requiring manipulation of strings of numbers in mind, he scored in the Low Average range. He also scored in the Low Average range on a mental arithmetic task. These scores were all in keeping with premorbid expectations. He made two errors on a serial subtraction task, although was able to redirect his focus and complete the task successfully.

Processing speed:

On an index of processing speed, and a further speeded task requiring mental tracking and visual search, the accused scored in the low Borderline range (i.e. in the bottom 5 percent).
His score was in the Extremely Low range on a verbal-based task where he was asked to identify colours and words at speed, which reflected a reduction from premorbid expectations.

Language

The accused did not demonstrate any issues with receptive or expressive language, aside from suspected mild hearing loss. On cognitive screening, he was able to follow simple commands, consistent with his ability to follow questions and task instructions throughout the assessment. He could generate two simple written sentences without spelling error. He could name a series of common objects without difficulty and demonstrated intact semantic knowledge about some of these items. He could repeat simple phrases and words but made errors when asked to read a series of irregular words (e.g. pint) – which was unsurprising given his reported educational background.

Research generally suggests there can be recovery of some cognitive functioning typically over the first one to two years after the individual abstains. The likelihood and extent of recovery depends on factors including quantities of and duration of alcohol consumption, age, and overall health status.

In February 2024, the Accused reported abstinence from alcohol since the collision.

Upon balance the accused is fit to be tried. He demonstrated preserved recent memory including key details of the collision, expressed ability to recall and understand the information provided by his legal representatives, and had at least superficial understanding of fundamental aspects of proceedings. He was aware of the charges, plea options, why he intended to plead not guilty, and the significant effect of the likely evidence against him. He demonstrated a limited understanding of some intricacies of legal proceedings (such as his right to challenge jurors)< He could be further educated on these and appeared to understand the concepts when briefly explained in simple terms.

There is evidence of a decline in some aspects of cognition, most likely due to long-term effects of sustained heavy alcohol use. The level of decline was insufficient to render him unfit to plead or stand trial. Modifications could facilitate his participation, with a support person including his legal representatives from whom to seek clarification or repetition of information when necessary, with regular rest breaks (every hour) to confer. She referred to mild hearing loss.

Ms Barhon addressed the fitness criteria in detail and said refusal to accept the evidence of intoxication beyond one schooner of beer at the time of the collision, which would implicate him if he acknowledged it, did not equate to an inability to reason. Despite low performance on several formal cognitive tasks, based upon all the information available he could make a defence and answer the charge, with support from his legal representation.

The Crown summarised her first supplementary report after consultation on 5 June 2024, provided in response to Dr McSwiggan’s neuropsychological test data. Ms Barhon concluded that the results do not alter her opinion.
The Crown summarised Dr McSwiggan’s second supplementary report of 11 June 2024, and challenges her assertion that the accused’s version was not evidence of reasoning.

His view of the evidence was it had little no importance for his case, and he gave it little to no weight when considering his decision. His reasoning was impacted by impaired insight and his responses showed failure to accept or believe the evidence. His denial of the blood alcohol concentration results showed his beliefs surpassed wilful obstinance.

In summary, the effects of alcohol related brain damage left the accused unable to understand the substantial effect of the evidence against him, which has more likely than not resulted in his choice of defence, without comprehending its impact or implications.

The Crown summarised Ms Barhon’s second supplementary report of 19 June 2024:

She disagreed with the conclusion that the accused’s reasoning is impacted by impaired insight and does not align with the requirements of fitness.

For ‘key pieces of evidence’ (such as his criminal history for drink driving and CCTV footage of him at the Colo Pub) the accused did not demonstrate problems with reasoning and insight; this demonstrates insight and capacity to reason about his circumstances.

It is not unusual for individuals with alcohol issues to underreport consumption and become defensive and reluctant to discuss their use, as was the case with the Accused.

It is standard practice for more extensive testing than performed by Dr McSwiggan for an opinion about executive functioning.

The Crown made submissions upon oral evidence from Dr McSwiggan.

The experts agreed that the accused met the diagnostic criteria for substance use induced mild/minor neurocognitive disorder; that there was not an “amnestic” quality to the accused’s memory, that if there was to be improvement in the accused’s condition, it would be expected to be within 12 months.

Dr McSwiggan gave evidence about “reasoning” to which I referred earlier found at transcript 4.44-15.12.

The Crown noted her evidence about “concreteness of thinking” at transcript 16-17.

The Crown noted that Dr McSwiggan said she vigorously canvassed the blood alcohol concentration with the accused at transcript 25.15 and referred to her further evidence at transcript page 26.16-39.

The Crown noted that Dr McSwiggan gave evidence about the accused’s purported consumption after the collision at transcript 28.12-16.

The Crown noted the evidence by Dr McSwiggan dealing with some of Ms Barhon’s report –transcript 28.50 - 29.

The Crown noted Dr McSwiggan’s opinion that the accused’s “lack of reasoning” would impact his ability to instruct his lawyers: transcript 30.20-27; and cross examination at transcript 32.33-44.

The Crown noted her evidence regarding the broader aspects of the Crown case: transcript 35.4-38 and 38.25-36.

Dr McSwiggan accepted that the accused reasoned about having a high blood alcohol concentration and needed an explanation for it: transcript 39.18; and gave evidence about insight and the ability to give instructions:

WITNESS MCSWIGGAN: The level of insight when you’re, as you said making up evidence, when it doesn’t correlate with the objective evidence would demonstrate to me probably not a great level of insight. Because his version would be discounted quite easily by all the witnesses.
CROWN PROSECUTOR: You would accept that he is able to give instructions to his lawyers about his version of the events that he wants put before the court isn’t it?
WITNESS MCSWIGGAN: He gave a version but I don’t necessarily agree that he would be able to give instructions whereby he can understand and appreciate what his lawyer is even saying to him about the weight of the evidence?

The Crown noted her evidence relevant to section 36(1)(i) of the Act (TT45.5-10):

BROADBENT: Having regard to section 36(1)(i), that is decide what defence the person will rely on and make that decision known to the person’s legal representative and the Court. The concern that you have is in relation to the decision, correct?
WITNESS MCSWIGGAN: The reasoning underpinning the decision.

The Crown addressed the oral evidence of Ms Barhon.

At transcript 19.10-38, after reflecting on the time spent with him, she said if there was concreteness of thinking and reluctance to discuss blood alcohol concentration evidence it was not an obvious feature of his presentation.

He was dismissive of his blood alcohol content as a topic with which he perhaps uncomfortable. He was quite agitated; he remembered there were blood tests that had showed that he had alcohol in his system and he was dismissive of it.

With reference to her report she said that when he brought up that there had been some blood tests done to look at his blood alcohol level he didn’t want to discuss it because it was uncomfortable for him. She thought him aware it was detrimental to him and he was quite reluctant to talk about it in detail.

Reasons why a person might not accept evidence include concern about what the admission would mean, they might be in a defensive state, it might be prior experience, it could be environmental factors. She said there is a number of reasons not necessarily equating to someone’s underlying level of cognitive functioning: transcript 21.14-19.

Upon whether it would be preferable to have been more robust with the accused regarding problematic aspects of the evidence, at transcript 21.21-22.15. she did not agree that it would have resulted in the opinion that the accused has concrete thinking. There were other ways to consider his ability to reason, his insight, and forethought. In other aspects of his functioning, he demonstrated awareness of other elements of his matter, the presence of other evidence, and the ability to reason about other issues. For example he volunteered that he was aware that there was blood taste taken that suggested that he had been drinking alcohol. He could reflect on some of the issues, that they were averse to him and he was sufficiently aware to think about his extensive drink driving history. This suggests he has considered them and has chosen a line of thinking that perhaps others would not take but that does not equate to someone not having the ability to reason.

He wanted to explain that he’d had multiple drinks after the collision and felt that is what had contributed to his level of intoxication. Combined with awareness that he had not eaten much for 24 hours beforehand and had other alcohol in this system, which perhaps had worn off, it was his choice to make such a defence.

At transcript 32.46-33.37 she referred to the aggravated component of the charge he faces, and that when challenged that related to the allegation he was intoxicated at the time of the collision he said he was not drunk because otherwise he would not have stopped. Her memory was that she put to him the evidence that he was intoxicated at the time, which explained the aggravated charge. He said he had only one schooner at the Colo pub and after the collision consumed six cans of beer which explained his blood alcohol concentration. He did not say to her that the reading was wrong.

An inability to reason would not be confined to one piece of evidence: transcript 36.44-37.3

Ms Barhon was asked whether she would expect inability to reason would be confined to one piece of evidence: transcript 36.44-37.3. If someone has concrete thinking there would be no choosing between items of evidence.

The Crown submissions then dealt with the likelihood of improvement which I need not discuss considering my finding that the accused is fit for trial.
I agree with the Crown’s submissions that I would find on the balance of probabilities that the accused is fit to be tried for the reasons offered, namely,

The evidence demonstrates that it is more likely than not that the accused can understand the substantial effect of the evidence to be given against him;

Can make a defence and answer the charge;

Can instruct his legal representatives to mount a particular defence and provide a version of facts accordingly; and

Can decide what defence to rely upon and make that known to his legal representatives and the Court.

I find that the accused demonstrated insight into the effect of various pieces of evidence in the case, including an understanding of the adverse effects of the evidence for him, and provide his version of events in reply.
I agree that accused’s explanations for the blood alcohol concentration made on separate occasions do not demonstrate ‘concrete reasoning’, as the term was explained by the expert witnesses. His version changed when repeated on different occasions, initially telling Ms Barhon he had one schooner at the Colo Pub, then stating that he later had four to six XXXX gold cans, which he asserted explains the blood alcohol concentration, later telling Dr McSwiggan that he had eight to ten drinks after the collision and that the blood alcohol concentration reading was wrong.
I agree with the submission that the accused’s provision of reasons and excuses to explain the blood alcohol concentration demonstrates insight and understanding that the evidence is averse to him and would be used to demonstrate that he was intoxicated at the time of the collision, unless it could be explained by consumption of alcohol after the collision.
I agree with the submission upon the accused’s acknowledgement other evidence of alcohol use would be expected in the trial, including the CCTV footage from the Colo pub prior to the collision, and his drink driving history.
I find that the accused understands the adverse nature of the blood alcohol concentration and the effect it will have against his assertion that he was not intoxicated at the time of the collision and showing that his differing versions of how much alcohol he consumed between the time of the collision and the blood alcohol testing were a deliberate attempt to provide an alternative explanation for the evidence.
I do not accept that he is unable to understand the substantial effect of the evidence or provide instructions to his legal representative due to cognitive impairment.

The Accused’s Submissions

The accused submitted in writing.
These provide an uncontroversial summary of the events leading to the collision, the investigation that followed, and the accused’s prosecution. They provide a summary of the evidence on behalf of the accused. All of this is consistent with what I have provided hereinbefore.
The submissions acknowledge that the Crown has accurately set out the relevant provisions of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 and primary common law principles applicable when determining whether a person is fit to be tried.
The key areas of dispute between the experts are noted, in particular the accused’s capacity to meet the following criteria from s 36(1) of the Act:

To understand the substantial effect of any evidence given against the person: s 36(1)(f) •

To make a defence or answer to the charge: s 36(1)(g) •

Instruct his legal representative so as to mount a defence and provide his version of the facts to that legal representative and to the court if necessary: s 36(1)(h) •

Decide what defence he will rely on and make that decision known to the person’s legal representative and the court: s 36(1)(i).

The submissions note that the issue revolves around the accused’s understanding and appreciation of the significant blood alcohol concentration.
The submissions acknowledged correctly that the test for fitness does not require perfection, nor complete understanding of the proceedings or that the accused necessarily be able to understand the applicable law, and a person cannot escape trial simply by establishing that they have low intelligence: Roberts v R [2023] NSWCCA 187 at [17].
Whether the accused is legally represented may also be relevant to the assessment of his ability to sufficiently understand the proceedings. The tests “may not be very difficult to meet”: Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29 at [298] per Hayne J.
Roberts v R ibid is also cited for the proposition that the criminal justice system is called upon hear matters concerning people with mental disorders, abnormalities, or delusions, which may be severe, and such conditions do not per se prevent an accused from being brought to trial. A mental disorder as defined in the Act may cause an accused to conduct a defence in a manner which the court considers to be contrary to their best interests but this does not of itself mean they are unfit: Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29 at [24]-[27] per Gleeson CJ; R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7 at [298]-[302]. 23.
The accused submits that the question of fitness here turns less upon whether any decision about the blood alcohol concentration evidence might be against the accused’s best interests, and more upon whether the accused can understand the substantial effect of that evidence.
The accused submits that evidence relevant to his reasoning process about the blood alcohol concentration is the critical feature in this instance.
The submissions address Dr McSwiggan’s evidence that the accused exhibited symptoms characteristic of a person with alcohol-related neurocognitive decline. She differentiated between cognitive aspects and neuropsychiatric aspects and agreed that she observed a degree of superficiality, irritability, impression management, and concreteness of thinking in him. His rigidity of thought was demonstrated in responses to her ‘vigorous’ challenge regarding the blood alcohol concentration evidence and she concluded that his inability to conceptualise the evidence reflected his alcohol related neurocognitive decline.
The submissions note that Ms Barhon did not agree that the accused exhibited concreteness of thinking or a superficial affect and attributed any irritability to his frustration from not wanting to undertake the assessment. Nonetheless, Ms Barhon did not think he deliberately exaggerated or feigned memory impairment, but he was “not really applying himself”.
The accused submits that the Court would accept Dr McSwiggan’s evidence over that of Ms Barhon on this issue, because of Dr McSwiggan’s extensive experience assessing and evaluating individuals suffering from alcohol related neurocognitive disorders, and second, because Ms Barhon did not directly challenge Mr Gall on the blood alcohol concentration results, which is a critical plank of the Crown case and a significant piece of evidence, especially in the context of the assessment of his reasoning capacity. Moreover, Ms Barhon accepted that concrete thinking “can be” consistent with a diagnosis of alcohol-related brain injury although she qualified this with her finding that the accused suffered mild cognitive impairment.
I do not accept that I should prefer the opinions of Dr McSwiggan as I shall explain hereunder.
Dr McSwiggan explained that neuropsychological tests do not always capture subtleties and, other than indicating whether a person is mildly, moderately, or severely impaired, cognitive testing does not make any predictions in terms of someone’s capacity.
Dr McSwiggan devoted her second assessment to challenging him on the blood alcohol concentration evidence.
The accused submits that the Court would have difficulty accepting Ms Barhon’s evidence that because there were other aspects of the evidence about which the accused was able to respond, it could not be concluded that the failure to reason through the blood alcohol concentration evidence was a significant indicator of unfitness. She referred to his awareness of the blood test results and that his criminal history may operate against him. The accused submits that this awareness does not demonstrate reasoning as explained by Dr McSwiggan, namely, the ability to consider elements to a decision, weigh those elements, and appreciate their importance.
I do not accept this submission.
Ms Barhon accepted the distinction between someone offering a reason and the reasoning process behind their decision.
Dr McSwiggan considered that concrete thinking is a neuropsychological aspect of the condition. Ms Barhon was asked questions about this at transcript 23.15:

WITNESS BARHON: I do think that he has, as I said, mild neurocognitive disorder which could be attributed to his alcohol use. But I also am under the impression as I indicated in my report that he has been experiencing some mood disturbance as a result of the offence and subsequent legal matter.
BROADBENT: In your clinical view, which is more likely the cause of those symptoms?
WITNESS BARHON: Well, which symptom?
BROADBENT: Concreteness of thinking.
WITNESS BARHON: I would say concreteness of thinking can occur in both but in this instance, concrete of thinking, I would be looking more towards the alcohol related neurocognitive condition.

The submissions include that it would be open to the Court to find that the accused is impaired with respect to at least 4 of the criteria, namely s 36(1)(f)-(i) of the Act. The accused does not contend that an accused would be found unfit whenever they do not wish to accept a piece of evidence which conflicts with their intended defence, as was expressed by Ms Barhon. However, the question is whether the accused fails to satisfy one or more of the criteria for fitness under that provision. The fitness criteria reflect minimum standards, the purpose to ensure effective participation by an accused in their trial: R v Maxwell [2023] NSWSC 1189 at [91] (Yehia J).

The accused submits relying on Dr McSwiggan’s evidence, that the accused’s inability to evaluate the substantial effect of the blood alcohol concentration evidence and provide instructions which reflect an understanding of the weight of the evidence against him would lead the Court to conclude that he is impaired in his ability to understand the substantial effect of the evidence, instruct his lawyers to mount a defence and decide what defence to rely on.
I do not accept that the evidence allows a finding that he has an inability to evaluate the substantial effect of the blood alcohol concentration evidence.
The accused submits that the specific circumstances of this matter require close consideration in determining whether the accused’s ability to meet any of the criterion in s 36(1) of the Act is impaired, noting that:

It is agreed he has a diagnosis of alcohol induced mild neurocognitive disorder;

Some of his symptoms include irritability, superficiality, concreteness of thought, and lack of impression management, and that these are related to his condition;

The blood alcohol concentration evidence is objectively overwhelming evidence that at the time of the collision the accused was substantially affected by alcohol; •

The accused was adamant in instructions that he was not affected by alcohol at the time of the collision and when challenged on the evidence says that he does not believe it and it must be wrong.

Dr McSwiggan states:

Based on my previous evaluation, Mr Gall demonstrated grossly impaired insight in relation to the substantial impact of the evidence as a result of his inability to accept or believe the feedback he was given in order to consider alternative perspectives. In addition to his distorted, pathological capacity for self-reflection, his responses showed a failure to accept or believe the evidence (BAC) and that he “can’t be wrong” about this. His denial of the BAC results showed his beliefs surpassed wilful obstinance.

The accused submits that Ms Barhon’s formulation that the accused’s attitude demonstrates mere refusal to accept the evidence should not be accepted. Considering that Ms Barhon did not challenge the accused upon the strengths of his belief or the reasons for it, it is difficult to see how she could reach such a robust view of the accused’s reasoning. Conversely, Dr McSwiggan challenge him on the evidence of blood alcohol concentration and the consumption of alcohol after the fact.
Regardless of the contrast drawn, upon the more comprehensive approach by Ms Barhon to the assessment of the accused l accept her opinion on this.
The accused submits that on balance, he cannot be said to ‘understand’ the substantial effect of the evidence if, by reason of a neuropsychological symptom of his condition, he does not believe it or is ultimately of the view that the evidence is “wrong”. This was of significance to Dr McSwiggan because the blood alcohol evidence was ‘direct and objective’ evidence rather than circumstantial. While a ‘rudimentary’ understanding may be sufficient to satisfy s 36(1)(f) and acknowledging that the accused need not have the ability to undertake a detailed and intelligent analysis of the prosecution case: R v Dellamarta [2020] VSC 745 at [84], he submits that an understanding must involve more than mere awareness of the existence of evidence. As Dr McSwiggan points out, understanding involves comprehending the evidence and appreciating it in relation to the particular circumstances. The evidence related to the blood alcohol concentration is neither complex, nor esoteric. Despite its simplicity, however, Dr McSwiggan is of the view that the accused has difficulties with the appreciation element, noting that difficulties with higher order thinking are common symptoms associated with his condition.
I do not accept this proposition. I find that the accused has in his responses to both experts that he understands the evidence and appreciates its effect.
The accused submits that the words ‘substantial effect’ used in s 36(1)(f) of the Act imply some more significant understanding. Where, as in this case, the blood alcohol concentration evidence appears overwhelming, the accused’s inability to reason in relation to it in particular reveals lack of capacity to understand the ‘substantial effect’ of evidence given against him. The fact that the accused could comprehend that there was other evidence adverse to him does not diminish this proposition, given the overwhelming significance of the blood alcohol concentration evidence.
I do not accept this submission.
Moreover, Dr McSwiggan’s concern about the accused’s process of reasoning regarding the blood alcohol concentration evidence means that in her view his capacity to decide what defence to rely upon under s 36(1)(i) of the Act is also impaired. In the absence of any thorough assessment or consideration by Ms Barhon of the accused’s decision-making capacity, the accused submits the Court would prefer Dr McSwiggan on this aspect.
The submissions proceed with the question of permanence but since I find that the accused is fit for trial I do not intend to address them on this point.
If the Court finds the accused fit for trial, an order should be made remitting the matter to a Magistrate for the holding of a case conference under Division 5 of Part 2 of Chapter 3, Criminal Procedure Act 1986: s 52(2) Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

Consideration

I question the reliability of Mr Marks’ evidence of the accused’s incapacity considering the history he provides none of which extended to limit the accused’s opportunities to drive of which Mr Marks must have been aware through their close association.
I do not accept that the accused’s denial wrong doing and assertions that he had not been drinking before the crash, apart from one schooner of beer, in the face of compelling evidence to the contrary is of itself sufficient basis upon which to find that he is unfit for trial. I have weighed the opinion of Dr McSwiggan offered to explain the accused’s response to the evidence. Implicit in the opinions advanced on the accused’s behalf is the proposition that he believes his version of events to explain his blood alcohol concentration, upon which he rejects the cogent evidence against him because of his concrete thinking as opined by Dr McSwiggan. I do not accept this considering the events described by the witnesses who saw him and interacted with him after the collision, and his explanations for the collision including that the deceased came into his path notwithstanding the accused’s progress along the roadway to the point of the collision.
Contrary to what is said of the accused by those speaking for him, and Dr McSwiggan, rather than not having an adequate understanding of the case against him and the evidence available to the Crown to prove it, I find that his utterances in the representations attributed to him by Dr McSwiggan and Ms Barhon reveal that he understands the case against him to be that he consumed a large amount of alcohol before the collision, but denies that he did so, asserting that his intoxication was from his consumption afterward, and that the witnesses who say otherwise are wrong. This does not persuade me that he is unfit for trial.
The first assessment by Dr McSwiggan was via audio visual link and for one hour only. This was for clinical assessment and limited testing. Notwithstanding the confidence with which Dr McSwiggan relies upon her seniority and skill gained in practice over the years, I am not persuaded by her asserted capacity to focus upon what she perceived to be an adequate level of testing and sufficient enquiry of the accused for her assessment. This is not to suggest that Dr McSwiggan has not faithfully described her perception of the test results, but considering the circumstances in which they were administered in what I find to be less time than appropriate, I am circumspect about the opinions offered upon them.
I am not persuaded that the limitations which Dr McSwiggan observed provided sufficient scope to properly assess the accused’s fitness. In conjunction with the time constraints the use of an audio-visual facility must have had some limiting impact, in contrast to the in-person consultation undertaken by Ms Barhon over the longer period with a broader range of psychometric testing administered. Dr McSwiggan it would seem accepted the representations by the accused and Mr Marks without exploring further, in contrast to Ms Barhon who asked for further information from the accused testing the reliability of his initial representations to her.
The reliability of the clinical assessment by Dr McSwiggan must depend upon the veracity of the representations she attributed to the accused. His assertion that he did not take drinks before the collision that contributed to his blood alcohol concentration, and his representations that the blood alcohol concentration arose from his consumption of beer after the collision, gives rise to incongruity because of inconsistency between the argument that he is so burdened from long term alcohol use causing symptoms limiting his capacity to participate in his proceedings, and his representations asserting his innocence that the blood alcohol level, whatever it might be, was the product of drinks consumed after the collision.
The first supplementary report by Dr McSwiggan provided on 6 January 2024 was once again via audio visual ling for 20 minutes only, again providing but limited opportunity for the assessment sought.
The history gleaned by Ms Borhan indicates a level of competence in the accused above the observations by Dr McSwiggan, Mr Marks, and Ms McCarthy.
I agree with Ms Borhan’s observation that since the accused could demonstrate the capacity to reason and think flexibly on testing, despite variability across performances, his refusal to accept the evidence that he was intoxicated with alcohol beyond one schooner of beer at the time of the incident – which would implicate himself as guilty if he did acknowledge this fact - does not equate to an inability to reason.
I am not persuaded to accept the opinions expressed by Dr McSwiggan that the accused is unfit for trial.

Decision

I agree with the Crown’s submission that upon the balance of probabilities the opinion offered by Ms Barhon should be accepted and that the accused is not unfit for trial upon consideration of the criteria set forth in s 36(1) Mental Health and Cognitive Impairment Forensic Provisions Act 2020.
Specifically, I find that though by reason of the accused’s misuse of alcohol throughout a substantial period of his life, whereupon he was found by neuropsychologists Dr Sally McSwiggan and Ms Lucienne Barhon to suffer a mental health impairment and cognitive impairment, upon the cognitive testing administered and the comprehensive clinical assessment by Ms Barhon I find that he has demonstrated capacity:

To understand the offences the subject of the proceedings,

To plead to the charges,

With the assistance of his lawyers, to exercise the right to challenge jurors,

To understand generally the nature of the proceedings as an inquiry into whether he committed the offences with which he is charged,

To follow the course of the proceedings so as to understand what is going on in a general sense,

To understand the substantial effect of any evidence given against him,

To make a defence or answer to the charges,

To instruct his legal representative so as to mount a defence and provide his version of the facts to his representative and to the court if necessary,

To decide what defence he will rely on and make that decision known to his and the court.

I find there are no other grounds upon which the accused might be considered as unfit to be tried for the offences.
Ms Barhon accepts that there are challenges for the accused, but with appropriate arrangements, including a support person such as Mr Marks, to assist as might be required, together with his solicitor and counsel, he can participate in the proceedings in accordance with the above criteria.
I have considered the likely length and complexity trial, drawing upon the Crown Case Statement.
Upon representations attributed to the accused in the clinical assessments made by the neuropsychologists, as contemplated by s 44 Mental Health and Cognitive Impairment Forensic Provisions Act 2020, with appropriate modification of the trial process, if necessary, will facilitate the accused’s understanding and effective participation in the trial.

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Amendments

30 July 2024 - License plate redacted, full name taken out of title and other small formatting issues fixed.

Decision last updated: 30 July 2024

Medium Neutral Citation:	R v Gall [2024] NSWDC 315
Hearing dates:	19 June 2024
Date of orders:	25 July 2024
Decision date:	25 July 2024
Jurisdiction:	Criminal
Before:	Bennett SC ADCJ
Decision:	The Accused is Fit for Trial
Catchwords:	Mental Health Fitness Hearing – Accused’s fitness to stand trial
Legislation Cited:	Crimes Act 1900 S 52A(2), S 52A(1)(c). Criminal Procedure Act 1986 s 66(1), s 166 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 Road Transport Act 2013 Law part code 79217 S 117(1)(a)
Cases Cited:	Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29 Kesavarajah v The Queen [1994] HCA 41 R v Dellamarta [2020] VSC 745 R v Maxwell [2023] NSWSC 1189 R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7 Reg. v. Presser (3) (1958) VR 45. Roberts v R [2023] NSWCCA 187
Category:	Principal judgment
Parties:	David Gall (Defendant) Rex (Prosecutor)
Representation:	Counsel: Mr Whitaker (Crown) Mr N Broadbent (Counsel for the accused) Solicitors: Office of the Director of Public Prosecutions Ms. McCarthy (Solicitor for the Accused)
File Number(s):	2023/00161384
Publication restriction:	Nil