The State of Western Australia v Bingham - [2018] WADC 182

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- BINGHAM [2018] WADC 182
CORAM:   TROY DCJ
HEARD:   3-6 DECEMBER 2018
DELIVERED          :   20 DECEMBER 2018
FILE NO/S:   IND 706 of 2017
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
GEOFFREY STUART JOHN BINGHAM

Catchwords:

Criminal procedure - Fitness to stand trial - Intrusion errors - Nature of defence - Turns on own facts

Legislation:

The Criminal Law (Mentally Impaired Defendants) Act 1996 (WA), s 8, s 9

Result:

The accused is fit to stand trial

Representation:

Counsel:

The State of Western Australia	:	Mr B Sertorio
Accused	:	Mr A Elliott

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	Corporate Counsel Lawyers

Case(s) referred to in decision(s):

Eastman v The Queen (2000) 203 CLR 1
Ngatayi v The Queen (1980) 30 ALR 27
R v Presser [1958] VR 45
R v RER [2001] WADC 133; (2001) SR (WA) 269
Sinclair v The King (1946) 73 CLR 316
T (2000) 109 A Crim R 559
The State of Western Australia v Tekle [2017] WASC 170

TROY DCJ:

Introduction

The accused man Mr Geoffrey Bingham faces an indictment containing 14 counts. It is alleged that on three occasions in the early part of 2016 he offered to sell or supply cannabis or cocaine. Further that on five occasions he sold methamphetamine to an undercover police operative. It is further alleged that on 10 March 2016 he was in possession of methamphetamine with intent to sell or supply as well as possessing firearms and unlawfully obtained property.
Mr Bingham was arrested and charged as long ago as 10 March 2016. Originally there was a co-accused, but by the most recent indictment of 15 February 2018 only Mr Bingham is charged. Mr Bingham was committed for trial on 1 June 2017. On 21 July 2017 the matter was set down for a 10 day trial to commence on 20 February 2018. The trial judge, his Honour Judge Goetze adjourned the start of the trial on a number of occasions, but the trial was ultimately vacated on 26 February 2018. On 9 March 2018 the Chief Judge set the case down for an eight day trial commencing 26 November 2018. That second trial was vacated on 9 November 2018.
On 21 November 2018 Mr Bingham brought an application under the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) seeking a declaration under that he is unfit to stand trial. The possibility of such an application was first flagged in correspondence from his previous barrister, a Mr Anthony Parsons on 12 September 2017. This court has previously obtained a report from a psychiatrist, Dr Mircea Schineanu of 3 February 2018 on Mr Bingham's fitness to stand trial.
There are two fundamental issues for me to resolve. Does Mr Bingham have a mental impairment as defined? If he does, is he is unfit to stand trial? That second fundamental issue can be broken down into three further components. Is Mr Bingham:
•unable to follow the course of the trial;
•unable to understand the substantial effect of evidence presented by the prosecution in the trial; or
•unable to properly defend the charges?

Relevant personal information relating to Mr Bingham

I will return in some detail to the reports of the respective experts and the evidence that they gave in the hearing before me. The following details of Mr Bingham's background emerged from those reports.
Mr Bingham was born on 2 August 1961 and is currently aged 57. He had a traumatic childhood characterised by significant physical abuse at the hands of his father. He was in the care of the State for periods as a child following the separation of his parents. He was married for 15 years, divorced in 2000 and has two adult sons who live with him.
He left school after year 8 but has forged a successful career in the glass trade. His business has at times employed 30 staff and generated enough revenue to result in the freezing of $3.3 million in assets on 11 March 2016.
Mr Bingham was involved in a motor vehicle accident on 2 April 1990 at the age of 27. The other driver was killed and Mr Bingham sustained significant injuries to his right leg which has led to some permanent deformity.
Mr Bingham reports an assault at work on 2 August 2015, prior to the alleged offending, when he was struck with a pole but suffered no loss of consciousness.
Mr Bingham was a victim of an assault in Hakea prison on 18 March 2016 when in custody on remand for the alleged offending. He was punched without warning and suffered a complex fracture to the right side of the face requiring his hospitalisation for some 17 days.
Mr Bingham asserts that he was a victim of a further assault when he was struck with a frozen water bottle and then kicked, but suffered no loss of consciousness. He was hospitalised, however, and it was discovered that he had sustained a minimally-displaced fracture of the right frontal bone, a closed fracture of the left acromial end of the clavicle and a medial orbital fracture of his right facial bone. Although Mr Bingham advised Dr Hargate, the author of a neuropsychological report, that this assault occurred in Hakea prison on 4 February 2018, he was on bail at that time. There was no explanation in the hearing before me for this discrepancy, other than it must be an error. In an email from Mr Mestichelli on 11 December 2018 it was suggested that this assault occurred in Kwinana on 5 February 2018.
Within the reports there is some suggestion of Mr Bingham being assaulted on other occasions as well such as with an axe and a bottle, see for example page 3 of Ms Jane Sampson's psychological report.
Mr Bingham's past criminal history is confined to driving offences. He perceives that in the past he has been an alcoholic but in recent times has moderated his intake. He has a long history of use of illicit drugs including methamphetamine. As recently as 15 November 2018 he tested positive for amphetamine and methamphetamine.

The alleged offences

It is necessary for me to set out the offences alleged against Mr Bingham in some considerable detail. That is because many of the experts who have given evidence have repeatedly characterised this case as a complex trial. Mr Bingham's counsel has also described this case in those terms. The complexity becomes relevant to Mr Bingham's ability to follow the trial and to give instructions. In particular, the interplay between the likely defence response to these allegations, Mr Bingham's ability to assist in that response and what have been described as 'intrusion errors' is a fundamentally important issue.
I acknowledge that this matter has previously been listed as a ten day trial, albeit when there was a co-accused, and then more recently as an eight day trial. I also note that on 21 July 2017 counsel appearing for the State characterised this matter as, 'a long and complex drug prosecution.' Much more recently, however, on 9 November 2018, his Honour Judge McCann characterised this matter as 'an extremely simple case' (ts 395).
Whilst the matter is undoubtedly more complex than many matters which are tried in this court, with respect, I do not consider this to be an overly complex case. I will explain why.
Counts 1, 2 and 3 relate to communications intercepted under a telecommunications warrant on 7, 15, and 22 January 2016 in which Mr Bingham appeared to negotiate with associates for the sale of respectively, three pounds of cannabis, 7 g of cocaine and 3.5 g of cocaine.
The elements the State must prove on each of counts (1) ‑ (3) are:
•that the person said by the State to be the offender is this accused;
•Mr Bingham made an offer to sell or supply prohibited drugs; and
•it was an offer in the sense that Mr Bingham intended would be taken seriously by the other person.
Following his arrest, Mr Bingham was interviewed at the Kensington Police Station at 5:42 am on 11 March 2016. He declined to speak to a lawyer. On the prosecution case he understood he had the right to remain silent and understood where the recording of the interview could be played.
Having watched the starting portion of this interview, I note that the two scratches to the top of Mr Bingham's head that I refer to below do not appear to have worsened in the period that had lapsed since the commencement of the search video. The only injury that Mr Bingham made any reference to was his leg injury, which he described as amounting to a 35% disability. He did say that he could do with some diazepam but only particularised lack of sleep as having any effect upon the way he was thinking. He understood that he did not have to answer questions and joked with the two police officers about having a cigarette. He confirmed that at the time of his arrest his right to speak to a lawyer was withheld but that it had now been restored to him. He immediately said 'no' when asked if he wanted to contact a lawyer.
Mr Bingham was played recording CSN 4737 of 7 January 2016 (as well as shown some text messages) which relates to count (1), offering to sell or supply cannabis. He accepted that one of the participants was him and that the other person was known as 'Boydie'. This was a call he made using his mobile phone 0419 911 373. He had another mobile phone that ended in 726. He agreed that the reference to a pound of green related to marijuana. The total price of the three pounds he offered to sell was $4,100. He said that the sale probably occurred and that his profit would have been $500.
He was then played recording CSN 7390 of 15 January 2016 which relates to count (2), offering to sell or supply cocaine. He again accepted that one of the participants was him and that the other person was Boydie. He agreed that the reference to a 'quarter ounce of cola' related to 7 g of cocaine.
He was played recording CSN 9016 of 7 January 2016 which relates to count (3), offering to sell or supply cocaine. He accepted again that one of the participants was him and that the other person was called Sally. He agreed that the reference to a 'ball of coca cola' related to 3.5 g of cocaine.
Counts 4, 5, 6, 7 and 8 relate to alleged controlled purchases made by an undercover operative, 'UCO 715' on 28 January, 4, 15 and 24 February and 10 March 2016. All of UCO 715's interactions with Mr Bingham were covertly recorded and it is alleged that operational money and methamphetamine changed hands.
Having listened to some of the audio recordings, it seems clear to me that it is Mr Bingham who is speaking and that he has no difficulty in conversing entirely naturally with the undercover operative and some third parties.
The State will call UCO 715 who used the assumed name 'Hannah'. On 28 January 2016 she went to Mr Bingham's business premises, 'Wayne's windscreens' at 17/108 Welshpool Road, Welshpool. She asked to speak to 'Geoff'. A person fitting the description of Mr Bingham came out to speak to her and they discussed her smashed front car windscreen. In conversation with Mr Bingham she said that the window had been broken by a guy who was demanding money, and that she was told to come and see him because, 'he might be able to help out with some other stuff'.
Mr Bingham asked, 'was over gear, is it?' The witness told him, 'I just want to have, like, money ready to go for you'. Mr Bingham asked, 'so you don't want tick or anything?' The undercover operative asked 'I don't know, if you had ½ B at all'. This is a reference to half a ball of methamphetamine namely 1.75 g. Mr Bingham said that for a half she would be 'looking at about 600'.
Mr Bingham instructed her to put his telephone number into her phone, advised her that his place was unit 2 and described it. This address, 77‑79 John St, Welshpool is very close to his business premises.
At 5:25 pm the operative called Mr Bingham to advise him that she was at the front of his address and had some 'coin' for him. They met and Mr Bingham said, 'what you want? A HB?' Mr Bingham then sold the operative 1.75 g of methamphetamine for $600. He also advised he could do a ball for $1,200. He told her he could properly go as high as half an ounce or an ounce.
The 1.75 g of methamphetamine was placed into security movement envelope W000986084. The certificate of analysis for the contents of this bag show that it contained 1.73 g of methamphetamine at a purity of 80% (PB 338). This alleged conduct gives rise to count 4, selling methamphetamine.
On 4 February 2016 the operative called Mr Bingham again. She asked if she could pop around and Mr Bingham said, 'yeah, no dramas'. She attended at Mr Bingham's units at 2:58pm and said to him, 'I was wondering if I could grab some off you as well'. Mr Bingham said, 'give me a second'. According to the witness she was given 3.5 g of methamphetamine which was placed into security movement envelope W000986090. She paid Mr Bingham $1,200. The certificate of analysis for the contents of this bag show that it contained 3.49 g of methamphetamine at a purity of 78% (PB 367). This alleged conduct gives rise to count 5, selling methamphetamine.
On 15 February 2016 the operative again attended Mr Bingham's business premises and went into a room with him. She said to Mr Bingham, 'I was just looking to grab a B of you, if that's all right.' Mr Bingham responded, 'yep, yep'. He told her that he did 7 ½ or 8K for an ounce. He told her that the best price he could do for her was 7 ½. He told her to send him a text the day before which simply contained a '?'. According to the witness she was given 3.5 g of methamphetamine which was placed into security movement envelope W000986058 in exchange for $1,200. The certificate of analysis for the contents of this bag show that it contained 3.49 g of methamphetamine at a purity of 75% (PB 393). This alleged conduct gives rise to count 6, selling methamphetamine.
On 23 February 2016 at 3:42 pm the witness sent a text message to Mr Bingham's phone number 0477 867 526 which read, '? Tomorrow.' The witness repeated this text message at 5:35 pm and received a response by text from mobile number 0455 156 634 which read, 'who is this?' The witness called the number she had initially been using 0419 911 373, and according to her Mr Bingham answered. He told her that he was now using his old mobile number. They agreed to meet at his unit the following day before 3.00 pm.
On 24 February 2016 at 12:54 pm the witness sent a text message to the number ending in '373' which read, 'hi Geoff I will see u in a hr.' She then attended at his unit at 2:27 pm but there was no one there. She then went to his business premises where she met Mr Bingham and again they went into a room.
Mr Bingham told her that he should have called her and that he was just waiting. He said, 'you need anything now I've got smaller now if you want it'. The witness asked him, 'how long do you reckon' and he said, 'I'm hoping within an hour. It was meant to be here last night but it didn't turn up'. Mr Bingham asked if she 'needed anything to get her through a ball or something.' The witness said 'do you reckon if I come back in an hour, that'd be good or….'Mr Bingham said, 'I'll call you.'
At 4:23 pm the witness again called Mr Bingham who asked her to attend his address at about 5 00pm. The witness sent Mr Bingham a text message at 5:14 pm advising she would be there in about 30 minutes. She attended at 5:47 pm. According to the witness she was sold 28 g of methamphetamine for $7,500. She placed the drugs into security movement envelope W000986058. It was then placed inside security movement envelope W001036298 (statement of David Gilliland page 192). The certificate of analysis for the contents of this bag show that it contained 27.9 g of methamphetamine at a purity of 77% (PB 465). This alleged conduct gives rise to count 7, selling methamphetamine.
On 3 March 2016 at 3.00 pm the witness again met Mr Bingham at his business premises. She asked if she could get the same as they did last week and Mr Bingham said 'yep'. She then asked, 'but is it possible to get two?' Mr Bingham responded 'mmm'. The witness asked him what the best possible price would be for 2 ounces and Mr Bingham said, 'he couldn't do any better than what I did'. The witness asked '15?' Mr Bingham responded 'yep'. It was agreed that this transaction would occur on Monday.
On 7 March 2016 at 12:16 pm, following a conversation half an hour earlier, the witness received a message from the phone number ending in '634' asking, 'Hi Hanna is it 1 or 2 wanted.' The witness responded by text, 'Hi Geoff 2 thanks heaps!' At 12:19 pm the witness received a text message from the accused stating, 'okay it is happening now but will take half an hour'. At about 1:48 pm in a telephone call Mr Bingham advised the witness that the 2 ounces had not yet been supplied to him. He repeated this at 3:48 pm and the witness and Mr Bingham agreed that the witness would attend his home unit on 10 March 2016. The witness confirmed this in a further conversation with Mr Bingham on 9 March 2016.
Finally, on 10 March 2016 at 12:16 pm the witness telephoned Mr Bingham and told him that she would attend his unit at 1.00 pm to purchase the 2 ounces. She attended the unit at 2:30 pm but there was no one present. She then received a telephone call from the accused saying that he was in fact at the address. The witness was invited in at 2:33 pm.
According to the witness the accused sold her a medium-size plastic clip seal bag containing 56 g of methamphetamine for $15,000. These drugs were placed into security movement envelope W000986063. She described two other male persons as being present. In the recorded conversation Mr Bingham told the witness that, 'he got robbed on the weekend, lost an ounce and a few grand'. The witness and Mr Bingham discussed the quality of the drugs, which the witness described as being 'magic diamonds'. Mr Bingham said, 'it's pretty good'. Mr Bingham said, 'two in there'. The drugs were weighed on Mr Bingham's kitchen scales and came in at '2.1'.
After the transaction, the contents of security movement envelope W000986063 were placed inside security movement envelope W001036298 (statement of David Gilliland page 210). The certificate of analysis for the contents of this bag showed that it contained 58 g of methamphetamine at a notably high purity of 86% (PB 612). This alleged conduct gives rise to count 8, selling methamphetamine.
Immediately after this last controlled purchase, police officers executed a Misuse of Drugs Act 1981 search warrant at 77 - 79 John Street. Entry was effected by officers of the Police Tactical Response Group (TRG). Mr Bingham and two alleged associates, Kevin Daye and Rocco Marico were arrested (PB 1113).
Continuity of the drugs is dealt with by the evidence of Detective First Class Constable David Gilliland.
There are a number of photographs in the prosecution brief at pages 281 – 285 which plainly show Mr Bingham with a person who I understand to be the female covert operative.
The elements the State must prove on each of counts (4) ‑ (8) are:
•that the person said by the State to be the offender is this accused;
•that the accused sold something;
•what he sold was a prohibited drug; and
•the accused knew that the thing was a prohibited drug in that he had at the time an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that the thing in question was a prohibited drug.
The police officers who executed the search warrant located:
•count 9: the $15,000 in operational funds that had just been given to Mr Bingham by UCO 715 for the drugs giving rise to count 8.
•count 10: 16 bags of methylamphetamine weighing 24.94 g in total at a purity ranging between 77 to 84%.
•counts 11 and 12: two improvised Zip guns for which Mr Bingham was not the holder of a permit under the Firearms Act 1973.
•count 13: a total of $1,335 in Australian currency.
•count 14: a quantity of electronic goods.

Police also found two sets of scales and CCTV surveillance equipment.
The elements the State must prove on count (10), possession of methamphetamine with intent to sell or supply, are:
•that the person said by the State to be the offender is this accused;
•that he had in his possession a substance;
•that the substance he possessed was a prohibited drug;
•the accused knew that the thing was a prohibited drug; and
•that he had the intention to sell or supply the substance or any part of it he had in his possession to another.
In the search video conducted at 6:01 pm Mr Bingham said that the two persons with him were persons that he only knew 'newly'. They had brought him some stuff which he did not believe was methamphetamine. They had bought the stuff five minutes before the raid. They had probably been there on two earlier occasions. He said it was an agreed purchase of 2 ounces from Rocco for $12,000. He said that he paid for it with 'cash from the police officer'. He told police that the cash was now in the pool table.
Mr Bingham said in reference to a mobile phone, 'it was left by the policewoman'. He had either been told or had deduced that 'Hannah' was in fact a police officer. Mr Bingham said, 'I pick up maybe 2 ounces. I ran and took five rounds out to her when she left it but she didn't stop'. He said he had weights of half weights, half balls and balls packaged. He accepted that he would sell half weights for $250, half ball for $500 and a ball for $1,000. He said he sells these drugs half-price to mainly aboriginals, because he didn't like to see them getting ripped off. He would supply 30 to 40 people a day. Mostly half weights or singles. The most he had sold was that day. It would have been 2 ounces.
I have viewed the commencement of the search video. The officer in charge of the investigation spoke to Mr Bingham after speaking to Mr Daye and Mr Marisco. Mr Bingham, like the two other men, was handcuffed to the front. Mr Bingham was lying on his side but immediately sat up. He appeared, unsurprisingly perhaps, to be somewhat distressed and had two scratches to the top right hand side of his head. He responded to all questions asked of him. He acknowledged that he had been secured and did not make any complaint of any assault. He understood he was under arrest for misuse of drugs and firearms. He understood the caution and he understood that the video could be played in a court of law. It was explained to him that his right to contact legal representation had been temporarily revoked.
The damage caused by the forced entry was shown on the video. After about 15 minutes taking some overall video footage of the premises, police officers again spoke to Mr Bingham. He was again lying on his side but immediately got into a seated position and was able to stand by himself, albeit with some difficulty given the handcuffs.
Mr Bingham immediately provided details of the code for the secure room where a shotgun was located. He appeared to me to be alert, orientated and responsive and his answers to the questions asked of him by the police were reasonably expansive.
The exhibit log also shows that police found in a storeroom under a staircase two Apple Mac laptops, four iPhone 6s, two iPhone 5's, a Samsung mobile phone, three iPads, two Samsung tablets and two digital cameras. Police also found four digital cameras in a bedroom. All these give rise to count 14, possession of unlawfully obtained property.
Police also found the $15,000 in the pool table (count 9) and $360 in a wallet as well as $975 in the storeroom (count 13).
The elements the State must prove on each of counts (9), (13) and (14) are:
•that the person said by the State to be the offender is this accused;
•the accused was in possession of the money or electronic goods;
•the money or electronic goods are capable of being stolen; and
•the money or electronic goods is reasonably suspected of being unlawfully obtained.
Mr Bingham stated there was $15,000 in cash within the pool table. He told police during the search that the electronic items were collateral for when he loaned money or 'smoke'.
Finally, police found a single shot zip gun containing a shotgun cartridge in a bookshelf in the front office area (count 11) and a second single-shot zip gun containing spent casing on a shelf in the storeroom (count 12).
The elements the State must prove on each of counts (11) ‑ (12) are:
•that the person said by the State to be the offender is this accused;
•the accused possessed a firearm; and
•the accused was not the holder of a licence or permit under the Firearms Act for the firearm.
In the search video Mr Bingham acknowledged ownership of a shotgun (not the subject of a charge) and that he was the current licensee. It was loaded at the time. It was in a secure room under his staircase, leaning against the wall. The room was locked by keycode 9356. He had seen a handmade gun found on the bookshelf but he didn't know where it came from.
He accepted that his mobile phone number was 0419 911 373.

History of proceedings in the District Court

The protracted history of this matter is relevant to an appreciation of likely defences and also of Mr Bingham's capacity to give instructions.
The trial brief reveals that Mr Bingham was represented by a lawyer at his second appearance in the Perth Magistrates Court on 18 April 2016. On 20 June 2016 Mr Mark Andrews wrote to the Director of Public Prosecutions seeking a release of frozen funds for the purpose of legal expenses in representing Mr Bingham. On 22 December 2016 and on 25 January 2017 Mr Andrews appeared on his behalf.
Mr Bingham's first appearance in the District Court was on 21 July 2017 before his Honour Judge O'Neal. At that time there was a co‑accused, Phuoc Sang Le. On this occasion a Mr Harben appeared for Mr Bingham, seemingly as an agent for a Mr Anthony Parsons, a barrister based in New South Wales. As I have noted, the matter was set down for trial, for 10 days, commencing 20 February 2018.
In his expert report, as I note below, Dr Hargate relates the difficulties that Mr Bingham's present solicitor, Mr Frank Mestichelli, seemingly encountered in taking instructions from Mr Bingham at some point prior to 3 October 2018. I will return to this later, but I note that the opportunity existed for Mr Bingham to give instructions to previous lawyers far closer in time to the events of 10 March 2016.
On 5 October 2017 the matter came before the Chief Judge. Ms Mundy of Timpano Legal appeared for Mr Bingham, having been engaged very recently.
On 26 October 2017 Ms Mundy advised the Chief Judge that Mr Parsons had been briefed by Mr Bingham's previous solicitors. Counsel for the State referred to a communication from Mr Parsons dated 12 September 2017 in which he advised there may be a fitness to stand trial issue. Ms Mundy indicated that a psychiatric report had not yet been prepared.
On 16 November 2017 the matter came before his Honour Judge Stavrianou. His Honour granted Ms Mundy's application for a fitness to stand trial report. On 14 December 2017 the matter once again came before his Honour Judge Stavrianou. On this occasion his Honour granted Ms Mundy's firm leave to cease acting.
Thereafter Mr Bingham was unrepresented until 11 January 2018, when the matter again came before the Chief Judge. This was the first occasion on which Mr Mestichelli appeared for Mr Bingham. Mr Mestichelli advised that he had been approached the day before by Mr Tony Grego. Mr Grego is referred to in the reports as Mr Bingham's carer although there is no formality to that arrangement. The Chief Judge expressed concerns about the delays that had occurred in Mr Bingham arranging representation.
On 15 February 2018 the matter came before his Honour Judge Goetze with Mr Mestichelli appearing as a friend of the court. Mr Mestichelli described the assault of 4 February 2018. Mr Mestichelli stated that he was not on the record for the criminal matter. Mr Mestichelli referred to the possibility of Mr John Hawkins acting for Mr Bingham, subject to release of funds.
On 19 February 2018 the matter again came before his Honour Judge Goetze with Mr Mestichelli again appearing as a friend of the court. The State discontinued proceedings against Mr Le and indicated a desire to proceed with a new indictment. Counsel for the State indicated that an amount of $50,000 would be released from the freezing order for the benefit of a lawyer nominated to act on Mr Bingham's behalf, whilst noting that this lawyer had not attended.
There were other appearances which I do not need to particularise and as I have noted the trial was ultimately vacated. The matter then came before the Chief Judge on 9 March 2018 with Mr Bingham appearing in person. Mr Bingham referred to a list of requirements he had given to the State prosecutor Mr Sertorio. The matter was then listed for an eight day trial commencing 26 November 2018.
The matter came back before the Chief Judge on 29 March 2018. Mr Seamus Rafferty appeared as a friend of the court. Mr Rafferty indicated that although he had been asked to represent Mr Bingham, he could not do so because of a conflict having represented Mr Marisco at his sentencing. Mr Bingham stated that he had instructed Mr Parsons and Mr Mestichelli the previous week, ts 188.
The next court appearance was on 3 May 2018. Mr Mestichelli now appeared for Mr Bingham, having filed a notice of acting the previous day.
On 30 May 2018 Mr Mestichelli, on instructions from Mr Bingham, filed a permanent stay application. Mr Mestichelli also sought disclosure of a number of items as particularised in a document entitled 'annexure A'. One of the matters sought, for example, was a copy of the formal application provided to an acting assistant commissioner for authority to conduct a controlled operation under the Criminal Investigation Covert Powers Act 2012 (WA).
Mr Mestichelli stated in the affidavit that the items were needed in order to know the case Mr Bingham had to meet and in support of an application for a permanent stay. The basis for the stay application was not revealed. In my view, as is apparent from my summary of the prosecution case above, the case Mr Bingham has to meet is blindingly obvious.
The listing certificate filed by Mr Mestichelli on 30 May 2018 revealed that there were disputes concerning the admissions made by Mr Bingham at the time of his arrest. Mr Mestichelli made reference to procedural irregularities, non-conformance with procedure, validity of search warrants and admissions made under duress and whilst under the influence of drugs.
The matter then came before her Honour Judge Petrusa on 31 May 2018 when Mr Mestichelli again appeared for Mr Bingham. The defence application for a permanent stay was adjourned.
On 6 June 2018, again acting on instructions, Mr Mestichelli filed applications for witness summonses on the Commissioner of the Western Australia Police. On behalf of the commissioner, on 16 July 2018 the State Solicitor's Office filed an application to cancel those summonses.
On 28 June 2018 the matter came before his Honour Judge Stavrianou. Mr Mestichelli advised that the basis for the application for the exclusion of Mr Bingham's admissions was that they were under duress and having been denied recourse to his solicitor. Further, that Mr Bingham had been struck around the head so as to be rendered unconscious. Mr Bingham, it was argued, was not in a lucid state when interviewed and was under the influence of drugs. It was not possible to identify how many police officers were alleged to have assaulted the accused: ts 220.
I have made reference to my observations about Mr Bingham's presentation at the search of his premises and in interview.
On 6 August 2018 the matter came before his Honour Judge McCann. Mr Mestichelli again appeared for Mr Bingham. Mr Mestichelli maintained that the operation was outside the mandate provided for in the controlled operation, ts 245, and that Mr Bingham was assaulted and sustained a significant trauma to his head, ts 246.
Mr Mestichelli asserted that the two co-offenders Maresco and Le were responsible for bringing any drugs to the premises on 10 March 2016: ts 322.
On 4 September 2018 his Honour published his reasons. These reasons were suppressed as is this decision. His Honour was satisfied that there was no substance to the defence contention that full disclosure has not occurred according to law, or that there were grounds for concern as to the legitimacy of any warrants or other authorities relied on by the police, or that any of the procedural or administrative documentation and information sought under the summonses (or unaccounted for) could be of any forensic importance whatsoever. His Honour regarded both summonses to be an abuse of process and set them aside.
When the matter then came back before his Honour Judge McCann on 20 September 2018, the State prosecutor noted that the question of fitness to stand trial had only very recently been re-agitated.
There was a brief hearing on 25 October 2018 before his Honour Judge McCann followed by a final hearing before his Honour on 9 November 2018.
His Honour noted that Mr Mestichelli was able to obtain instructions from Mr Bingham to set aside the summons to the police. His Honour cancelled leave to file an affidavit prepared by Mr Grego. The trial dates were vacated for a second time.

The relevant statutory framework

Mental unfitness to stand trial is dealt with in pt 3 of the Act. Section 8 of the Act provides:
Interpretation
In this Part, unless the contrary intention appears —
'mental illness' means an underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli;
'mental impairment' means intellectual disability, mental illness, brain damage or senility;
'trial' means all court proceedings for an offence other than —
(a)proceedings in relation to bail; and
(b)sentencing proceedings.
…
Mental unfitness to stand trial is defined in s 9:
A defendant is not mentally fit to stand trial for an offence if the defendant, because of mental impairment, is —
(a)unable to understand the nature of the charge;
(b)unable to understand the requirement to plead to the charge or the effect of a plea;
(c)unable to understand the purpose of a trial;
(d)unable to understand or exercise the right to challenge jurors;
(e)unable to follow the course of the trial;
(f)unable to understand the substantial effect of evidence presented by the prosecution in the trial; or
(g)unable to properly defend the charge.
These factors are framed disjunctively and so in the event that it is established that an accused has a mental impairment and any one of the factors particularised at s 9(a) to (g) are established, it follows that he or she is unfit to stand trial.
Mr Bingham is presumed to be mentally fit to stand trial unless and until the contrary is found under pt 3 of the Act: s 10(1).
Applying s 12 (1) of the Act, I must decide the question of whether Mr Bingham is not mentally fit to stand trial on the balance of probabilities, after inquiring into the question and informing myself in any way I see fit.
A finding that an accused person is not mentally fit to stand trial will, if the conditions in s 19(5) are satisfied, result in that person being subject to a custody order without conviction. Alternatively, a finding of unfitness to stand trial could result in the indictment being quashed and the accused released.

The relevant authorities

The relevant principles have been settled for quite some time and I restate them by reference to the cases in which they were enunciated or repeated. Each case, of course, turns on its own particular facts and circumstances.
The criteria set out at s 9 of the Act reflect what had long been the position at common law, namely what came to be known as the 'Presser criteria' as stated by Smith J in R v Presser [1958] VR 45, 48.
In Ngatayi v The Queen (1980) 30 ALR 27, the High Court considered the former s 631 of the Criminal Code (WA) which provided for a jury deciding, applying the test at common law, if an accused is capable of understanding proceedings. Gibbs, Mason and Wilson JJ referred at 32 to comments by Dixon J in Sinclair v The King (1946) 73 CLR 316, 334 that,
it does not seem to have been noticed by text writers how high a degree of intelligence this test might demand if it were literally applied.
Their Honours stated at 32 - 33:
The test looks to the capacity of the accused to understand the proceedings, but complete understanding may require intelligence of quite a high order, particularly in cases where intricate legal questions arise. It is notorious that many crimes are committed by persons of low intelligence, but it has never been thought that a person can escape trial simply by showing that he is of low intelligence. We respectfully agree with the view expressed by Smith J in Presser that the test needs to be applied 'in a reasonable and commonsense fashion.' Smith J went on to say that there are certain minimum standards which the accused needs to equal before he can be tried without unfairness or injustice, but added that the accused 'need not have the mental capacity to make an able defence'. The reference to mental capacity is explained by the fact that these remarks were made in relation to a statute which spoke of insanity, and not a want of capacity 'for any reason'. The view that the accused need not have sufficient capacity to make an able defence, or to act wisely or in his own best interest, is accepted also in English cases … and accords with common sense.
Those observations, concerning as they do the common law test, are equally applicable, in my view, to s 9.
As their Honours observed at 33 the test needs to take account of the fact of an accused person being represented by competent counsel. The issue of capacity to understand evidence and to be able to make a proper defence is concerned with capacity to instruct counsel as to the facts. No unfairness could arise from the accused's incapacity, unaided, to understand the law.
As Chesterman J observed in T (2000) 109 A Crim R 559, 565:
The authorities also suggest that the test is not a demanding one. If an accused realises, in general terms, what it is to be put on trial and can make sense of the evidence against him he can take a sufficient part in proceedings for the trial to proceed.
It is ordinarily in the interest of an accused person to be brought to trial, rather than to risk being incarcerated without trial under a custody order under s 19 of the Act: Eastman v The Queen (2000) 203 CLR 1 (Gleeson CJ) at [24].
As Fiannaca J observed in The State of Western Australia v Tekle [2017] WASC 170 [90], the criteria in s 9(f) does not require an understanding of concepts. It is concerned with whether the accused will be able to understand the substantial effect of the evidence, that is the facts that are established by the evidence that are of importance. Further, as his Honour noted at [84], in a trial, for the most part, Mr Bingham would be listening to the evidence, not giving evidence. I must, however, approach criteria s 9 (g) on the basis that Mr Bingham will wish to give evidence.
I agree with and apply his Honour's observations at [93] that:
The meaning of 'properly' includes 'in an appropriate or suitable manner' and 'correctly'. In the context in which it is used in s 9(g), I accept it connotes, among other things, the ability to consider in an informed way, and make rational choices about, defences that are reasonably open on the evidence and the submissions that should be made by the defence in respect of the evidence presented by the prosecution.

Not unusually, in the hearing before me most, if not all, of the experts provided opinions as to the ultimate issue of fitness to stand trial. But the decision of fitness to stand trial is not a question for a specialist tribunal but for the presiding judicial officer. It is a matter I must determine after inquiring into the question. It is appropriate, obviously, that I consider the expert evidence, but the ultimate question is for me.
In R v RER [2001] WADC 133; (2001) SR (WA) 269 Yeats DCJ discussed the problem of experts in this area intruding into the ultimate issue and noted at [59] that the problem has been discussed an article, Birgden A and Thomson D, 'The Assessment of Fitness to Stand Trial for Defendants with an Intellectual Disability: A Proposed Assessment procedure involving Mental Health Professionals and Lawyers' (1999) 6(2) Psychiatry, Psychology and Law 207–214.
In that article the authors, both psychologists noted that:
Fitness to stand trial is a legal, not a clinical decision; the mental health profession offers opinion and the Court decides. Determining fitness is a moral, social and legal matter determined by legislation and the Courts using the commonsense viewpoint of laypersons … the Court should not shift responsibility to mental health professionals to define what fitness is when such practitioners do not have the specific ability to decide the legal issue.
The expertise of a psychologist, neuropsychologist or a psychiatrist does not extend to the conduct of a criminal trial. Nor does it extend to the requirements of the presiding judicial officer to ensure a fair trial as between the State and the accused. None of the witnesses contended to the contrary.
I agree with the observations of Yeats DCJ in RER at [65]. I am not required to consider whether the accused is mentally unfit to stand trial generally. I am required to determine whether he is mentally unfit to stand trial in relation to these particular charges.
Having set out that necessarily detail contextual background I then turn to my analysis of the expert evidence placed before me in respect of the matters in issue between the prosecution and defence.

Is Mr Bingham suffering from a mental impairment?

As I have noted, mental impairment means intellectual disability, mental illness, brain damage or senility. Mental illness, in turn means an underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli.
On behalf of Mr Bingham, Mr Elliott helpfully supplemented his oral submissions with a three-page written synopsis setting out the key passages of evidence relied upon, in support of his contention that Mr Bingham does suffer from a mental impairment and that he is, as a consequence, unfit to stand trial.

Dr Murray Chapman's report and evidence

Dr Murray Chapman, a psychiatrist, was one of three witnesses called on behalf of Mr Bingham. Dr Chapman provided a report dated 13 November 2018 and a supplementary report dated 30 November 2018.
I will predominantly refer to the first report. In that report Dr Chapman related that Mr Bingham told him that, in some unspecified way, he had been set up selling methamphetamine to 'an undercover cop'. Further, in respect of the drugs giving rise to count (10), someone else had brought drugs onto his premises.
In relation to the February 2018 assault, Mr Bingham reported that he did not have a very clear recollection of the events. It seems he has failed to attend for follow-up appointments at the Royal Perth Hospital.
Mr Bingham claimed that he has stopped using methamphetamine about four weeks earlier, as result of being told to stop by the judge then presiding over his case. That, of course, is not borne out by the urinalysis test of 15 November 2018.
Dr Chapman administered the Montréal Cognitive Assessment test and Mr Bingham's score suggested mild cognitive impairment.
Dr Chapman diagnosed a substance (alcohol and amphetamine) induced neurocognitive disorder of long duration. The criteria were met for mild neurocognitive disorder. This impairment appeared to be affecting his ability to filter out or exclude 'intrusion errors'. I will discuss the concept of 'intrusion errors' when analysing the evidence of Dr Hargate.
There is no suggestion from the evidence of Dr Chapman of any intellectual disability or senility. Dr Chapman maintained in cross‑examination (ts 526) that a diagnosis of brain damage is inferred from the neurocognitive disorder. He inferred (ts 527) some, 'biological substrate leading to the problem identified in the neurocognitive testing'.
In his second report Dr Chapman concluded that there was a second mental illness, namely post‑traumatic stress disorder arising from the road traffic accident that had occurred 30 years earlier when he was 27. It does seem to me to be remarkable that such a disorder could go undiagnosed for 30 years. Dr Chapman considered that these trauma‑related symptoms were likely to impinge upon Mr Bingham's executive faculties and contribute to functional impairment.

Dr Craig Hargate's report and evidence

I entirely accept that Dr Hargate is an eminent neuropsychologist and has produced a thoroughly comprehensive report. He is clearly quite passionate on the issue of Mr Bingham's mental health and fitness to stand trial.
Dr Hargate's report dated 28 October 2018 begins with a recital of the difficulties apparently experienced by Mr Mestichelli in taking instructions from Mr Bingham. In the absence of an affidavit from Mr Mestichelli, and in the context of his apparent ability to take detailed instructions from Mr Bingham as I have previously noted, I place no weight on that aspect of the report.
Dr Hargate carried out what I accept was a comprehensive clinical neuropsychological assessment of the accused, based upon three separate appointments on 13, 14 and 19 October 2018. Each assessment was for four hours in duration with a short break in the middle. Mr Bingham had never previously been assessed in this way.
Dr Hargate noted episodes of disinhibition and the expression of views that bordered on paranoia concerning the legal system. He considered Mr Bingham to be a reasonable historian and noted that when he spoke in free speech there were no overt signs of difficulty.
It is plain from this report, particularly at pages 7 and 8, that Mr Bingham was capable of providing a comprehensive outline of significant events in his life in response to Dr Hargate's questions.
Dr Hargate utilised the Frontal Systems Behaviour Scale (FrSBe) to identify changes in behaviour potentially associated with organic dysfunction of the frontal lobes of the brain. The family-rating form was completed by Mr Bingham's son Shay comparing his father's current behaviour, as it now is, compared to a particular assault to his head in March 2015. Unfortunately this aspect was not clarified during the hearing before me, but I understand that the parties accept that the reference to March 2015 should be March 2016.
Based, it would seem, on the assessment of his son, Mr Bingham is said to have a chronic history of clinically significant executive dysfunction, preceding the alleged assault and encompassing, therefore, the time when he is alleged to have offended.
In evidence, Dr Hargate explained that the task for a neuropsychologist is to control and screen out all those influencing factors that affect how a person functions so as to enable a measurement of the organic functioning of the brain, that is what the brain can actually do (ts 430).
Dr Hargate administered a wide range of cognitive function tests as set out at 11.3.1 of his report. He also utilised three formal standardised tests of malingering. Mr Bingham showed no evidence of malingering on any of these three tests: 11.4.1.
Dr Hargate found that Mr Bingham's pre-morbid level of cognitive function was average or above average. On two components of visual and verbal reasoning he scored in the below average range, but he was average on working memory and average or above average on processing speed
Mr Bingham was in the average or above average ranges in tests of processing speed and language processing. His performance was average on a test of concentration/memory span indicating an ability to hold in mind at least seven pieces of information at any given moment.
Mr Bingham was in the lower limit of the average range on an auditory distraction test and below average on visual distractibility. He was in the lower average range on immediate and delayed recall of the story. He was at least above average on a test of word recognition memory. He scored in the average range on a test for the ability to learn new verbal information. He scored reasonably well in tests for perception, scanning and construction: 11.4.9.
Mr Bingham did not exhibit any overt signs of significant difficulties for language comprehension although he demonstrated some impulsivity with test questions. He did not demonstrate any overt difficulties with tangential or circumlocutory speech.
As set out at 11.4.13 various cognitive tests were used in respect of frontal and executive function. Mr Bingham was in the extremely low range with his rate of errors on a response inhibition test. Performance was variable across structured tests of executive function. Performance was average on a test of mental control. The rate of repetition and 'intrusion errors' in a verbal learning task was in the below average and extremely low range is respectively.
As set out 11.5.3 Mr Bingham's performance was below expectation on a small cluster of frontal/executive functions. The deficits noted represented memory deficits secondary to frontal lobe dysfunction. Dr Hargate was quite satisfied that Mr Bingham performed to the best of his ability throughout the assessment.
Dr Hargate found it noteworthy that all the cognitive impairments found in the assessment were in frontal executive functions, indicating a degree of dysfunction in parts of the frontal lobes of the brain: 12.2.3.
Dr Hargate felt that Mr Bingham's rate of intrusion errors on a verbal learning task was of particular note. Intrusion errors refer to information that is related to the theme of a certain memory but, whilst not actually part of the original episode, become associated with the event. This makes it difficult to distinguish which elements are, in fact, part of the original memory. A high rate of intrusion errors is caused by dysfunction in the frontal lobes of the brain: 12.3.1.
Dr Hargate noted that when Mr Bingham was asked to recall target words he erroneously recalled new, semantically related words that were not from the target list. These are to be regarded as intrusion errors and he made more such errors than 99% of the normal population of his age will typically make: 12.3.2.
Dr Hargate considered that Mr Bingham experiences significant difficulties in some frontal cognitive functions and exhibits in everyday life disinhibition related behaviours and behaviours indicative of executive dysfunction, all of which are indicative of weaknesses in parts of the frontal lobes: 12.4.2.
Dr Hargate regarded the precise cause of these frontal lobe deficits as uncertain. Mr Bingham's chronic and long-term abuse of methamphetamine is likely to be a causative factor but his difficulties may also, in part, be the result of multiple head trauma.
Dr Hargate testified, at ts 436, that the rate of errors that Mr Bingham produced was very unusually abnormal. Throughout the course of particular learning tests he made something like 45 intrusion errors as opposed to the expected zero to five. He did not think that he had ever met a patient who made so many intrusion errors.
I have no reason to doubt, and indeed I accept, the evidence of Dr Hargate that Mr Bingham did make a significantly large number of intrusion errors.

Dr Steve Patchett's reports and evidence

One of the three witnesses called by the State was a psychiatrist, Dr Steve Patchett, who had provided reports dated 6 November and 2 December 2018.
Initially, when Dr Patchett was giving evidence in examination‑in‑chief on 5 December 2018, his attention was drawn to Dr Chapman's report. At ts 593 - 594 he testified that he disagreed with Dr Chapman's diagnosis of substance induced mild neurocognitive disorder. As indicated in his second responsive report, he considered that criteria (a) hadn't been made out or explained in Dr Chapman's report, particularly in relation to the section referring to a 'modest impairment in cognitive performance.'
The following day, however, still whilst testifying in chief, Dr Patchett adjusted his evidence in this regard in that he accepted Dr Chapman's diagnosis using Diagnostic and Statistical Manual 5 'DSM 5' of mild neurocognitive disorder, ts 611. He referred to the frontal system's behaviour scale as described by Dr Hargate at page 10 of his report, administered as it was to Mr Bingham's son reporting on his father. That process identified those frontal lobe indicators of apathy, disinhibition and the executive function. Dr Patchett concluded,
So to me, that is enough. Now that I have been - been informed of that, that is enough for me to say - to agree that Dr Chapman's diagnosis of mild cognitive disorder was met.' ts 612
In cross-examination, Dr Patchett accepted that there was a mild neurocognitive disorder and was willing to infer the presence of brain damage, ts 639. He then testified that in his opinion, mild neurocognitive disorder did not amount to brain damage ts 640. Later, however, he agreed that the intrusion errors were caused by some sort of brain damage rather than withdrawal symptoms, ts 648.
The important point of Dr Patchett's evidence was that he conceded the presence of what he characterised as 'subtle brain damage', ts 641. I accept that to come within the definition of brain damage under s 8 it is not necessary for a particular degree of brain damage to be present.
Dr Patchett did not attribute the mild neurocognitive disorder to traumatic brain injury. By brain damage he meant physical damage to the tissues of the brain, the neurones, ts 676. Dr Patchett accepted, in essence, Dr Hargate's conclusions that what Dr Hargate described as 'patchy deficits in executive functioning' probably have an underlying physical basis in the frontal lobes of the brain, ts 677.

Dr Mircea Schineanu's report and evidence

Dr Schineanu noted that there is no documented history of major mental illness (page 8 of his first report). Mr Bingham does have a history of depression and anxiety seemingly linked to his road traffic accident. Mr Bingham has a history of regular use of methamphetamine but has been functional in the community for lengthy periods of time without pharmacological treatment. Prior to being charged with these offences Mr Bingham had not engaged in any treatment for his ongoing mental health issues. As of 3 February 2018, Dr Schineanu did not consider Mr Bingham to suffer from a mental impairment so as to significantly impact upon his fitness to stand trial. I note that Mr Bingham was seemingly seriously assaulted the following day, 4 February 2018 and that Dr Schineanu has not seen him since.
Implicitly, Dr Schineanu did not consider Mr Bingham to be suffering from a mental impairment at that time, in that the only mental disorder was mild to moderate symptoms of depression and anxiety, which would not, it seems to me, come within the definition under s 8.
In evidence, however, Dr Schineanu accepted that a substance induced neurocognitive disorder, in addition to being a psychiatric condition in the Diagnostic and Statistical Manual 5 'DSM 5', is also an indication of organic brain damage, ts 693.

Conclusion on mental impairment

I am satisfied on the balance of probabilities that Mr Bingham suffers from a mental impairment, namely a substance induced neurocognitive disorder that amounts to brain damage. It is not necessary to reach any conclusion as to whether Mr Bingham is also suffering from a mental illness or from post‑traumatic stress.

The s 9 criteria

Counsel for Mr Bingham accepted that none of the criteria in s 9(a) to (d) have been made out, but submits that each of the criteria (e) to (g) have been made out, with a particular emphasis on s 9(g).
I take into account Mr Bingham's responses to me in court on various occasions. He certainly always appeared to comprehend and respond appropriately but obviously appearances can be deceptive and my observations are in no way determinative. Similarly, Dr Patchett referred to his observations that for the past two and a half days 'Mr Bingham sat very quietly in the dock, focusing attention on the various witnesses and for all intents and purposes he seemed to be attending', ts 631.
In addition to the experts I have already referred to I heard from a provisionally registered psychologist, Ms Jennifer Moody who spoke to her report of 12 September 2018 and from a psychologist, Ms Jane Sampson who spoke to her report of 5 November 2018.
I have considered the answers given by Mr Bingham in the recorded search procedures on 10 March 2016 and the formal interview at Kensington police station on 11 March 2016, whilst bearing steadily in mind the events since that date and the possibility of a deterioration in Mr. Bingham's mental state.
I also take account of the nature of the charges, the potential nature of the defence and what will be involved in this trial.

Dr Chapman's evidence on s 9 criteria

Dr Chapman testified that he suspected that Mr Bingham may not perform well in attempting to follow the course of a trial, which Dr Chapman thought was likely to be a complex, repetitive and prolonged process.
Based upon an hour long interview Dr Chapman was left with the impression that it would be with very considerable difficulty that Mr Bingham might adequately instruct a lawyer. That might be due to him continuing to impulsively vocalise his prejudicial view that the whole system is against him. I pause to note that this is not entirely uncharacteristic of persons facing serious criminal allegations.
Dr Chapman felt that the potential lack of capacity to instruct his lawyer was attributable to emotional instability, impulsiveness, delayed memory recall impairment and his proneness to intrusion errors.

Dr Hargate's evidence on s 9 criteria

Dr Hargate expressed concern about Mr Bingham's propensity to intrusion errors in his recall of information that is revisited on multiple occasions. Dr Hargate felt that when Mr Bingham is required to repeatedly go over certain information his mind becomes disorganised and mixed with other unrelated information in his memory. His recollections are unwittingly prone to significant levels of intrusion errors that are beyond his ability to control: 12.5.3.
Dr Hargate thought that Mr Bingham will need to be able to process relatively large amounts of information, which will be necessary revisited in the court and in the process of giving instructions: 12.5.4 and 12.5.5. I do not accept that characterisation for reasons I will elaborate upon.
Dr Hargate agreed in cross‑examination that his concerns in this regard were speculative, but that there is no test that can give an objective determination that proves that Mr Bingham will be definitively disadvantaged in this way. He could not extrapolate the significance of Mr Bingham's performance on the verbal learning test in the context of a courtroom environment other than by a process of speculation: ts 468.
Dr Hargate was asked, 'the deficit that you identified would that impair his capacity to give an account based on his own memory of an event that happened at the time when he's presented with one recording?' Dr Hargate responded,
well, look, I - you know, I suspect he could look at that one recording. He'll - he may have his own memory that he's got in his own mind before he sees that. That may remind him of that.

Dr Hargate thought that such a memory could be susceptible for intrusion in that, as I understand the evidence on this point, what Mr Bingham sees in the recording and his recollection before he looks at it, might cause him to synchronise the two together. What he says on a recording is going to be far more precise, accurate and full of detail than his own memory and might replace his actual memory: ts 472 ‑ 473.
Dr Hargate remained very confident that Mr Bingham is vulnerable to intrusion errors, ts 487.
I accept Dr Hargate's evidence that the test for intrusion errors is a natural component to verbal learning tests and is widely accepted as reliable.
Dr Hargate declared himself to be confident that there is a real risk that such errors will arise for Mr Bingham in a 'complex criminal trial'. I do not consider that Dr Hargate adequately exposed his reasoning process in this regard. I further note that the question assumed that which is in issue, namely the complexity of this particular trial.
I endeavoured to grapple with this aspect with Dr Hargate using possible lines of defence to count 4 as an example, ts 470. Those suggested lines of defence, leaving aside any legal argument as to the admissibility of the prosecution evidence, being:
•it was not Mr Bingham who conversed with the witness;
•if it was, he did not sell anything to her; or
•if he did, that he did not know it was methamphetamine.
Dr Hargate felt that the capacity for intrusion errors to impact upon Mr Bingham's ability to defend this case along any of those lines would depend on the nature of the discussion about this point with his lawyer. Dr Hargate stated:
If he had just discussed something previously, he goes off on a tangent, talks about something else, and the conversation changes but then they come back to it. His - his - the information, the knowledge he has about this would - might change as a result of - or depending on what other things he's been discussing before or - or what he might discuss after and then return to that. This is how I suspect his thinking could change, not depending on, you know, the reality of, you know, this kind of - exactly what happened but the reality of other conversations that are happening at that point and in moving around topics and coming back to topics, it's where he's just become confused. That's as much as I could imagine how it could translate in that situation.

The potential impact of 'intrusion errors'

Similarly, in a rather lengthy question I posed at ts 712 - 714, I requested counsel to condescend to particulars as to the nature of the defence that the intrusion errors adversely impact upon. Counsel advised that ultimately it might be the case that he was not in a position to condescend to those sorts of details, ts 714.
Counsel accepted that that Mr Bingham was in a position to cognitively engage with his lawyers in relation to questions of strategy and the making of decisions that revolve around that issue. Counsel was not able to submit that an examination of the materials disclosed much room for the operation of intrusion errors, ts 715.
Counsel reminded me of Ms Moody's observation about Mr Bingham's tendency to completely lose track, although it was acknowledged that this only comes into play if there is a need to take instructions in the nature of things that gives rise to this sort of intrusion error, ts 716. Mr Bingham's presentation when he met with Ms Moody at his solicitor's office on 7 September 2018 does seem to differ to his presentation to other expert witnesses. Ms Moody was unable to elicit a coherent chronology of medical history or significant life events whereas Dr Hargate and Dr Chapman were able to. The notable tremor to his hands and occasionally twitching of his right eye is not remarked upon by other witnesses and I did not observe such a feature at any stage during the three and a half days of the hearing before me. By his own admission Mr Bingham was using methamphetamine in the period during which he saw Ms. Moody.
Although in her report Ms Moody concluded that Mr Bingham was not fit to provide proper instructions to his lawyer or to understand or participate in court proceedings (page 7 of her report), she stated in evidence that she did not conduct a fitness to stand trial assessment. Rather, it was a preliminary assessment of the client where it became clear that he needed specialist examination, whereupon she referred him to Dr Hargate and Dr Chapman. Her conclusions as to Mr Bingham's fitness to stand trial were not a definitive statement, ts 422. Ms Moody was not able to say if his behaviour was consistent or inconsistent with methamphetamine use, ts 425.
Returning to my exchanges with counsel, Mr Elliott further submitted that the background to the series of transactions giving rise to the allegations on the indictment may not be apparent from the prosecution brief, ts 717 - 718. Counsel indicated his understanding, having taken instructions from Mr Mestichelli, that there were conversations that go beyond the conversations with the covert operative (and possibly others) revealed in the brief ,which add colour and flavour to some of the transactions alleged by the prosecution, ts 723.
Counsel accepted that intrusion errors require the repetition of events, and if Mr Bingham is the only person giving a narrative about events, one might ask rhetorically, 'how does that give rise to an intrusion error problem?'
As I indicated to counsel, it seems to me that the more fundamental difficulty arises from how another unrecorded conversation could transform a conversation about the sale of methamphetamine into something that wasn't a conversation about the sale of methamphetamine. Counsel accepted that proposition, ts 723 ‑ 724.
I accept the state's submission that the reference to 'other conversations' is too nebulous to permit a conclusion that Mr Bingham cannot properly conduct his defence.

The likely nature of this trial

Writing extra-judicially ('Easing the passing – the trial of John Bodkin Adams' page 8) about the nature of criminal trials in general, Lord Devlin remarked that,
most trials are no more than the acting out of the prosecution's opening speech diversified by the struggle of the defence to infect the mass of material with the reasonable doubt.
Obviously each criminal trial has its own unique level of relative complexity.
In this matter, it is accepted that Mr Bingham understands the requirement to plead to the charges, he understands the purpose of the proposed trial and he is able to understand and exercise the right to challenge jurors. Once the jury have been selected, the trial judge will make some preliminary remarks to the jury followed by the prosecution opening and any defence opening. Thereafter the State will call its evidence. I proceed on the basis that the following evidence is admissible. If there are arguments as to admissibility, it is difficult to see that such arguments would require Mr Bingham's input, save for the issue of his admissions in interview and in the search process, about which I will comment separately.
As counsel for the State Mr Sertorio has advised, the State will call evidence from Detective Paul Medlock, who will identify, if permitted, Mr Bingham's voice on the various recordings. That might be a matter for the jury to make its own comparison between Mr Bingham's voice in interview and the recordings, in the event that this aspect of the case is in issue.
I have absolutely no doubt that Mr Bingham will be able to instruct his lawyers as to whether or not it is his voice on various recordings and will be able to follow this evidence it is presented at trial.
Detective Medlock will adduce the authority for the covert operation, the telecommunication warrants so as to the permit the interception and recording of Mr Bingham's telephone calls, and the records from the telecommunication companies confirming that certain numbers are linked to Mr Bingham. Ordinarily, such matters are not in dispute, but in the event that the defence challenge the prosecution in this regard the defence will not require Mr Bingham's input.
If this evidence is permitted, I anticipate that one of Mr Bingham's lawyers (he has access to two, possibly three lawyers) will explain to him that the purpose of this evidence is to show that the use of an undercover operative and the interception of his phone calls was lawful. Further, that the telephone numbers allegedly used in the sale or supply of drugs are linked to him. Based on this explanation, I have no doubt Mr Bingham will be able to follow such evidence.
The telephone calls will last for a total of 72 minutes and there will be 37 short text messages.
As I have already indicated, the prosecution will call covert operative 715 who will testify that she met with Mr Bingham on a number of occasions in person, spoke to him by phone and bought drugs from him on five occasions. Her evidence in examination in chief will be entirely predictable. Through her, the prosecution will play 32 minutes of audio conversation and 10 minutes of video footage.
Any challenge to her in cross‑examination will either be that she did not meet with Mr Bingham or that they met for innocent purposes. I am quite satisfied that Mr Bingham will be able to tell his lawyers whether he did or did not meet with her on the five occasions which have led to counts (4) ‑ (8). Indeed, given the fact that Mr Bingham has been represented by a number of different lawyers at various stages since 11 March 2016, it would be very surprising if that information has not already been conveyed.
Similarly, I am quite satisfied that Mr Bingham will be able to tell his lawyers whether, if he did meet with her, it was for innocent purposes, as opposed to selling drugs. He will be able to do so despite his tendency to make intrusion errors.
It has simply not been explained to me how the capacity to make intrusion errors will actually impact on this entirely predictable scenario. I am quite satisfied that Mr Bingham will understand the substantial effect of her proposed evidence. He will have the benefit of transcript during her evidence if necessary. By the instructions that I am satisfied that he is capable of giving, he will be able to properly defend the charges. The test, of course, is not that he will be capable of successfully defending the charges.
In the event that the defence strategy is to challenge the continuity of the drugs from the time that they were allegedly sold to operative 715 until when they were analysed in the chemistry centre so as to give rise to the certificates of analysis, then again there is no need for any input from Mr Bingham.
I would expect that Mr Bingham's lawyers will tell him words to the effect, 'this aspect of the trial involves putting the prosecution to proof as to whether the substance they say you sold to #715 are the same drugs ultimately analysed in the lab.' Armed with that explanation, I am entirely satisfied he will be able to follow the course of such evidence.
As I have noted Mr Bingham has plainly been able to give instructions to Mr Mestichelli that when officers from the TRG entered his premises one or more of them assaulted him causing him to lose consciousness.
Interestingly although every expert referred to various head injuries sustained by Mr Bingham, none make any express reference to Mr Bingham being assaulted during his arrest on 10 March 2016. The highest is Mr Bingham's observation to Dr Schineanu that he was 'mistreated' during his arrest. In speaking with Dr Chapman, Mr Bingham confined himself to advising that his house was raided by the police (PB 57). Dr Patchett's report at PB 94 reads, 'following his arrest he was assaulted in Hakea prison,' significantly missing out any reference to an assault during the arrest itself.
Clearly, every arrest by members of the TRG has a forceful aspect to it. The TRG are deployed when there is a high risk arrest, such as where it is feared that firearms are present (such a fear being justified in this case of course). The objective is to incapacitate the person(s) as swiftly as possible. That, in itself, does not equate to an assault upon the arrested person.
In any event, the application that was ultimately ruled upon by his Honour McCann DCJ, would not have been made were it not for instructions from Mr Bingham.
In the event that Detective McGowan is called to give evidence about the circumstances immediately following the entry of the TRG either on a voir dire, if the admissibility of the various admissions is challenged, and/or during the trial itself, I am quite satisfied that Mr Bingham will be able to follow such evidence. I am quite satisfied that he will be able to give instructions about it.
If the prosecution are permitted to adduce evidence of the search of 77‑79 John St, the video recording will involve police officers explaining where they say they found certain items and any admissions made by Mr Bingham. It will last for 2 hours 20 minutes. In the event that defence counsel wish to put to police officers that they 'planted' the drugs, cash, firearms etc, then Mr Bingham's input will be restricted to instructing that the items do not belong to him.
Mr Bingham may wish to say that the drug that is the subject of count 10 belonged to one or both of the two persons arrested with him. I am quite satisfied he is capable of recalling if this is the case and instructing his lawyers accordingly. I am entirely satisfied that if this is put to the relevant police witnesses by his lawyer, he will be able to understand the effect of such evidence and follow its course.
If the admissions that Mr Bingham plainly made are not excluded, I am quite satisfied that he is capable of recalling why he made such admissions, for example because he felt disorientated and was in fear of the police, and instructing his lawyers accordingly.
Again, I am entirely satisfied that if this is put to the relevant police witnesses by his lawyer he will be able to understand the effect of such evidence and follow its course.
In the unlikely event that there is any issue as to the fact that the guns the subject of 11 and 12 are firearms, that will not require any input from Mr Bingham.
Finally, the prosecution propose to play the formal interview conducted with Mr Bingham on the morning of 11 March 2016. This interview lasted for 28 minutes and 28 seconds. If the admissions that he plainly made in that interview are not excluded, I am quite satisfied that he is capable of recalling why he made such admissions. For example, because he still felt in pain, was tired and was in fear of the police. I am quite satisfied that he is capable of instructing his lawyers accordingly. If this explanation is put to the relevant police witnesses by his lawyers, he will be able to understand the effect of such evidence and follow its course.
I am satisfied that Mr Bingham will be able to give evidence about why he made these admissions if he chooses to do so. I am satisfied that Mr Bingham will be able to give evidence about all matters of evidence in this case that tend to incriminate him if he chooses to do so.
I do not believe that Mr Bingham's mental impairment prevents him from reasoning that there may be a view of the evidence inconsistent with his own. I am not satisfied that he is unable to rationally evaluate evidence and give appropriate instructions to his counsel.

Conclusions on criteria s 9(e), (f) and (g)

I am not satisfied that Mr Bingham will be unable to follow the course of the trial (s 9(e)). He need not, of course, understand the purpose of all the various court formalities (Presser (48)). He will be assisted by highly competent counsel and an experienced instructing solicitor. I hold no concerns that he might not be able to understand the evidence to be led against him. I am satisfied that he will have the opportunity to give evidence if he wishes to do so, properly advised by his counsel.
I am not satisfied that Mr Bingham will be unable to understand the substantial effect of the evidence that will be presented by the prosecution in this trial (s 9(f)). In truth, this is not a complex case. It is on the face of it an extremely strong prosecution case but that is not the issue. It is well within Mr Bingham's mental abilities to comprehend the effect of the evidence to be led.
Finally I am not satisfied that Mr Bingham is unable to properly defend these charges (s 9(g)), whatever line of defence he chooses. He may need to explain why he made the various admissions, if he resiles from them, but he is capable of doing so. If his defence on count (10) is that, notwithstanding his admissions, the drugs belonged to someone else, he is capable of contributing to a defence along those lines. Similarly if his defence to some or all of counts (4) ‑ (8) is that either he never met # 715, or that if he did, she is wrong when she says he sold drugs, he is capable of contributing to a defence along those lines.

Overall conclusion

I am not satisfied on the balance of probabilities that Mr Bingham is mentally unfit to stand trial for these offences.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MW
Associate to Judge Troy
20 DECEMBER 2018