The State of Western Australia v Della Franca - [2023] WASC 416

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- DELLA FRANCA [2023] WASC 416
CORAM:   LEMONIS J
HEARD:   11-14 SEPTEMBER 2023
DELIVERED          :   1 NOVEMBER 2023
FILE NO/S:   INS 8 of 2023
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
JOHN GERARD BENNY DELLA FRANCA
Accused

Catchwords:

Whether the accused is mentally unfit to stand trial, in particular consideration of whether accused is unable to properly defend the charge

Legislation:

Criminal Code (WA)
Criminal Law (Mentally Impaired Accused) Act 1996 (WA)

Result:

Not satisfied that the accused is not mentally fit to stand trial for the alleged offence of murder
The presumption under s 10(1) of the Criminal Law (Mentally Impaired Accused) Act 1996 that the accused is mentally fit to stand trial is therefore not displaced

Representation:

Counsel:

Prosecution	:	A C Ebell
Accused	:	P D Yovich SC

Solicitors:

Prosecution	:	Director of Public Prosecutions (WA)
Accused	:	Taylor Rose

Cases referred to in decision:

Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450
Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1
Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572
Ngatayi v The Queen [1980] HCA 18; (1980) 147 CLR 1
R v Dunne [2001] WASC 263
R v Presser [1958] VR 45
The State of Western Australia v DJM [2021] WADC 2
The State of Western of Australia v Tekle [2017] WASC 170
Walthamstow Pty Ltd v Caratti [No 2] [2023] WASC 363

LEMONIS J:

The accused, Mr Della Franca, is charged with one offence that on 27 August 2021 near Pemberton he murdered Mr Tony Daniel Ditri. This is an offence under s 279(1) of the Criminal Code (WA) for which the maximum penalty is life imprisonment.
The matter was before me for the purposes of deciding whether Mr Della Franca is mentally fit to stand trial for that alleged offence.
The question of whether Mr Della Franca is mentally fit to stand trial is to be decided in accordance with pt 3 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (the Act).
Mr Della Franca is presumed to be mentally fit to stand trial until the contrary is found: s 10(1) of the Act. Accordingly, the question before me is whether Mr Della Franca is not mentally fit to stand trial. This question is to be decided by me on the balance of probabilities after enquiring into the question: s 12(1). In making such enquiry, I may inform myself in any way I think fit.
The critical section of the Act is s 9. It is worthwhile setting s 9 out in full. It provides:
9.Mental unfitness to stand trial, definition
An accused is not mentally fit to stand trial for an offence if the accused, because of mental impairment, is -
(a)unable to understand the nature of the charge; or
(b)unable to understand the requirement to plead to the charge or the effect of a plea; or
(c)unable to understand the purpose of a trial; or
(d)unable to understand or exercise the right to challenge jurors; or
(e)unable to follow the course of the trial; or
(f)unable to understand the substantial effect of evidence presented by the prosecution in the trial; or
(g)unable to properly defend the charge.
As Bowden DCJ observed in The State of Western Australia v DJM:[1]
Section 9 involves a two‑fold test. Firstly, the court must determine whether there is any mental impairment.
Secondly, if there is a mental impairment does that result in [the accused] being unable to meet any one of the criteria in s 9(a) ‑ s 9(g)? If so, [the accused] would be mentally unfit to stand trial.
[1] TheState of Western Australia v DJM [2021] WADC 2 [13] - [14].
The required assessment is not conducted in the abstract. It is directed to the offence with which Mr Della Franca has been charged. Thus, the assessment requires a consideration of the elements of that offence and also the evidence likely to be led at trial.
The expression 'mental impairment' in s 9 includes brain damage: s 8. As I will come to explain, Mr Della Franca has brain damage which manifests itself as a mild cognitive impairment. He therefore has a mental impairment as that phrase is defined for the purposes of the Act.
The question I must decide is whether I am satisfied on the balance of probabilities that because of his mental impairment, Mr Della Franca falls within any of the criteria set out in s 9 in relation to the charged offence of murder.
It is only necessary for me to be satisfied of at least one of the criteria set out in s 9 for me to be satisfied that he is not mentally fit to stand trial. The existence of a mental impairment does not of itself make Mr Della Franca not mentally fit to stand trial.[2]
[2] Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 [24] - [27]; R v Dunne [2001] WASC 263 [7]; DJM [25].
A relevant consideration in assessing the criteria set out in s 9 is that Mr Della Franca is represented by legal counsel.[3] At the risk of stating the obvious, that Mr Della Franca is represented by counsel is not in any way determinative of the question I must decide. Rather, it is one of the matters that informs the assessment of whether Mr Della Franca is not mentally fit to stand trial because of his mental impairment.
[3] Ngatayi v The Queen [1980] HCA 18; (1980) 147 CLR 1, 9; Dunne [14].
As I will come to explain, Mr Della Franca's counsel submits that he is unable to properly defend the charge and thus s 9(g) is engaged. In my view, the words 'unable to properly defend the charge' in s 9(g) encapsulate (amongst other matters) Mr Della Franca's ability to give evidence of his version of the relevant events, if he elects to give evidence. In that respect, an aspect of his ability to properly defend the charge must include his ability to give evidence of his account of the relevant events.
Such an outcome is consistent with the following passage from the judgment of Smith J in R v Presser:[4]
Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any.
[4] R v Presser [1958] VR 45, 48, see also Ngatayi, 8.
As Miller J observed in Dunne, s 9 is based on Presser.[5] In my view, the reference in the above passage from Presser to an accused making 'his version of the facts known to the court' must include an accused's ability to give evidence.
[5] Dunne [10].
In Dunne, after having analysed the relevant authorities, Miller J observed in relation to the application of s 9(e), s 9(f) and s 9(g):[6]
It is the ability of the accused to follow the course of the trial, understand the substantial effect of the evidence presented by the prosecution and/or properly defend the charge assisted by counsel which are the relevant questions. The accused does not have to understand the evidence in detail, nor does she have to understand the law and its application to the facts of the case.
[6] Dunne [14].
Furthermore, in The State of Western of Australia v Tekle,[7] Fiannaca J observed in relation to the application of s 9(g):
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.
[7] The State of Western of Australia v Tekle [2017] WASC 170 [93].
The State accepts that Mr Della Franca has a mental impairment. In this respect, the State accepts the evidence demonstrates that in 1982 Mr Della Franca suffered a brain injury and further, that this brain injury resulted in him having a mild cognitive disorder. That concession is properly made having regard to the evidence that is before me. The brain injury constitutes brain damage and therefore constitutes a mental impairment in accordance with the definition at s 8.
What I must assess is how the cognitive disorder manifests itself and whether that manifestation results in Mr Della Franca being not mentally fit to stand trial.
The parties accept the evidence does not demonstrate that any of the criteria set out in s 9(a) to (f) are engaged. The critical issue is whether I am satisfied on the balance of probabilities that he is unable to properly defend the charge and therefore s 9(g) is engaged.
There are two separate yet related concepts which I must consider. First, whether because of his mental impairment, Mr Della Franca is unable to make rational decisions as to what defences are reasonably open on the evidence and whether he should give evidence. Second, whether he is unable to give evidence that reflects an actual recall of what occurred.

Consequences of a finding that Mr Della Franca is not mentally fit to stand trial

If I am satisfied that Mr Della Franca is not mentally fit to stand trial, the manner in which the charge is to be dealt with is addressed by pt 3 div 3 of the Act. Before I can proceed under that division, I must be satisfied that his mental unfitness is not transient. This requires that one of two alternate further conditions are met. First, that at the time of finding that he is not mentally fit to stand trial, I am also satisfied that he will not become mentally fit to stand trial within six months: s 19(1)(a), s 19(3)(a). This is in effect predictive that his condition will not improve over the next six months. The second alternate condition is that I must be satisfied that after a further period of six months, Mr Della Franca has not become mentally fit: s 19(3)(b). This is not predictive, but instead looks at his actual mental fitness after a period of six months has expired.
In the event that one of these two alternate conditions are met, then I must quash the indictment containing the charge against him and either release Mr Della Franca, or make a custody order in respect of him: s 19(4). A custody order must not be made unless the statutory penalty for the alleged offence is imprisonment, which it is here. Further, I must be satisfied that a custody order is appropriate having regard to the matters set out at s 19(5) (a) ‑ (d).
Once a finding that Mr Della Franca is not mentally fit to stand trial is made, Mr Della Franca is presumed to remain not mentally fit until the contrary is found: s 10(2).
Before turning to the evidence that was adduced at the hearing, I will address the nature of the State case against Mr Della Franca.

The complexity of the State case

The State case against Mr Della Franca is relatively straight forward. It relies on a single incident in which it is alleged that Mr Della Franca used a shotgun to shoot Mr Ditri twice, thereby causing his death. There is no suggestion that any other people were involved or present at the time. In his interviews with police, Mr Della Franca admits he was there at the time and that he shot Mr Ditri once with a shotgun that he used on his farm.
The State will have to prove that Mr Della Franca had the requisite intent for his conduct to constitute the offence of murder. It is likely the State will have to prove that his act of shooting Mr Ditri was not an unwilled act. It seems unlikely that self defence arises on the account which Mr Della Franca gave during his police interviews. However, Mr Della Franca's lawyers will still need to explain this to Mr Della Franca.
As part of its case, the State is likely to contend that Mr Della Franca buried Mr Ditri's body in an attempt to hide it and that he sought to engineer a scenario whereby it would appear that Mr Ditri had disappeared into the local river while fishing. Mr Della Franca was arrested the day after the shooting, so these additional matters traverse a short period of time.
Defence counsel, Mr Yovich SC says there will be two aspects of expert evidence which will focus on and be highly relevant to what happened in the shooting. Mr Yovich points to post-mortem evidence and ballistics evidence. He considers this evidence is of moderate complexity and frankly accepts Mr Della Franca does not need to have a full grasp of the scientific complexities of either.[8] He does however point to there being an interplay between the expert evidence and Mr Della Franca's account of what occurred, which interplay Mr Della Franca will need to understand.[9]
[8] ts 356 - 357.
[9] Ibid.
In summary, the State case is not factually or legally of great complexity, although there is some complexity arising from the anticipated expert evidence. Further, Mr Della Franca was arrested and interviewed by police on the day after Mr Ditri was killed. There is therefore little delay between the incident itself and Mr Della Franca being apprised of the allegations against him.

General matters regarding the evidence

Mr Della Franca called two witnesses, Dr Liz Vuletich, a clinical neuropsychologist, and his first wife, Ms Nola Pensini. Dr Vuletich prepared a report dated 14 June 2022 concerning Mr Della Franca's mental fitness to stand trial. Section 4 of the report set out information provided by Ms Pensini. The purpose of calling Ms Pensini was to prove the matters set out at section 4 of the report.
The State called Dr Mandy Vidovich, a clinical neuropsychologist. Dr Vidovich prepared a report dated 27 January 2023 concerning Mr Della Franca's mental fitness to stand trial.
The respective reports of Dr Vuletich and Dr Vidovich became exhibits in the hearing. Dr Vuletich's report is exhibit 1.2. Exhibit 3 comprises the material provided to her for the purposes of considering her expert opinion. Exhibit 3 includes reports on brain scans undertaken in respect of Mr Della Franca. Exhibit 1 contains Dr Vidovich's report and the materials provided to her for the purposes of considering her expert opinion.
Dr Vuletich's report contained at Appendix B a statement of her qualifications, registrations and work experience. Dr Vidovich's report contained at Appendix C a statement of her qualifications. Having read the relevant statements of qualifications for each of Dr Vuletich and Dr Vidovich, I am satisfied that each is an expert in neuropsychology, in particular pertaining to criminal legal proceedings. Each is therefore able to give expert opinion evidence concerning Mr Della Franca's mental fitness relevant to the criteria in s 9.
There were additional exhibits tendered which clarified Dr Vuletich's opinion. These comprised email exchanges between Dr Vuletich and Mr Yovich (exhibit 4), notes of a meeting between Mr Yovich and Dr Vuletich, which notes Mr Yovich prepared and Dr Vuletich adopted (exhibit 5), and Dr Vuletich's answers to questions asked by State counsel, Mr Ebell (exhibit 6). Exhibit 7 was tendered after the conclusion of evidence. It comprises an email from Mr Yovich which provides further clarification of Dr Vuletich's evidence in response to a query from me.
Dr Vuletich and Dr Vidovich also gave oral evidence which consisted of evidence in examination‑in‑chief, cross‑examination and re‑examination.
Both experts subjected Mr Della Franca to a broad array of tests. It is the results of those tests which predominantly found their expert opinions.
Exhibit 2 is a USB which contains video recordings of seven interviews conducted by police officers with Mr Della Franca over the period 28 August 2021 to 10 September 2021. They total approximately nine hours in length. I have watched those video recordings.
The reports of Dr Vuletich and Dr Vidovich both summarise Mr Della Franca's account to them of his upbringing. The accuracy of those accounts is not disputed. In broad summary, it is as follows. Mr Della Franca's parents were of Italian heritage. He grew up in a household where both English and Italian was spoken. He left high school at the age of 15 and on his own account was not good at English. Since leaving high school, his principal vocation has been that of a farmer.
Ms Pensini married Mr Della Franca on 31 May 1980 and they separated in 1985. She gave evidence of her observations of Mr Della Franca before and after he suffered his brain injury in 1982.

Principal defence propositions

The defence proposition that Mr Della Franca is unable to properly defend the charge predominantly rests on Dr Vuletich's opinions that Mr Della Franca is significantly vulnerable to confabulation and he also suffers from disinhibition. Her principal concerns regarding disinhibition are the risk of it giving rise to thoughtless decision making and that it exacerbates the effect of confabulation. Mr Ebell accepts that if Mr Della Franca is vulnerable to significant confabulation and disinhibition then he is mentally unfit to defend the charge.[10]
[10] ts 324.
An important building block to Dr Vuletich's opinion that Mr Della Franca is prone to confabulation is that during her testing and observation of him he was prone to making extensive 'intrusive errors'.
It is useful at this stage to outline in general terms the concepts of confabulation, disinhibition and intrusive errors.
Intrusive errors are words that a person adds to their recall of events that are not part of their memory of that event.[11]
[11] ts 56, per Dr Vuletich.
Confabulation comes from memory error that is not factual and is not consciously constructed.[12] So, confabulation arises where a person's recall of events includes intrusive errors and the person does not appreciate that this is occurring.[13] Intrusive errors can indicate confabulation.[14] Dr Vuletich described it in this way:[15]
[Intrusive words are] not target memory items but they become part of that person's response on the testing and it's significant because it does suggest significant difficulties either in the learning phase or the retrieval phase of memory where someone can't discriminate between what is a true memory and what is something that has been generated from elsewhere.
… It can indicate what is known in the field as confabulatory errors or confabulations.
…
[Confabulations are] a recall of information that is not fact.
[12] ts 100.
[13] ts 100.
[14] ts 56.
[15] ts 56.
A particular concern with confabulation is the inability of the mind to filter out or know the difference between a failing memory or lack of recall, and the mind filling in the gaps when the memory has failed or there is a lack of recall.[16] So, an intrusive error is not just a memory gap. It is the person unknowingly filling in the gap with information that does not accord with an actual recall of the event.
[16] See, for example, ts 57.
The importance of disinhibition is that it affects a person's inability to disinhibit their responses, or put another way, to control their responses. Mr Yovich rightly accepts that for disinhibition to fall within the framework of the Act, it must be as a result of the brain injury and not as a result of personality traits.
Dr Vuletich explained the basis for her opinion that Mr Della Franca is unable to properly defend the charge and also explained the interaction between intrusive errors and disinhibition in her evidence as follows:[17]
Why do you say Mr Della Franca is unable to properly defend the charges he faces?‑‑‑Yeah, so I laboured with this a lot. Obviously, it's a very significant opinion to hold. Because in my view, his ability to draw on the proper information and filter out irrelevant information is compromised by virtue of his brain injury and a likely emerging neurodegenerative condition.
All right?‑‑‑He's - he's shown that he's extremely vulnerable to intrusive information. And he tends to act on that very - in the moment - very quickly without putting the brakes on, without inhibiting his response.
All right?‑‑‑And for me, that has a direct implication for his ability to reason through decisions when - that are important for the context of trial.
[17] ts 72.

Before turning to specific aspects of the evidence, there are some initial observations I wish to make.

Initial observations

In making the required assessment, in my view I must have regard to all of the evidence that is before me.[18]
[18] See Dunne [40].
The standard of proof of the balance of probabilities is the same standard of proof applied in civil cases. As was observed in Ho v Powell:[19]
[I]n deciding facts according to the civil standard of proof, the court is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision.
[19] Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572 [14] (Hodgson JA, with whom Beazley JA agreed). See also Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450 [80] - [81]; Walthamstow Pty Ltd v Caratti[No 2] [2023] WASC 363 [93] - [94].
Both the defence and the State urged me to prefer the evidence of their respective expert over the evidence of the other. In this respect, Dr Vuletich was of the opinion that Mr Della Franca was unable to properly defend the charge. Thus, s 9(g) applied. Dr Vidovich was of the opinion that Mr Della Franca was able to properly defend the charge.
Both Dr Vidovich and Dr Vuletich were of the opinion that the criteria in s 9(a) to (f) did not apply. Dr Vuletich did have some concerns regarding s 9(e). However, assuming that Mr Della Franca is afforded regular breaks and reviews with his counsel, she came to the view that this criterion is not met.
In my view, respectfully, the approach urged on me by the parties is too 'siloed'. As I will come to explain, the assessment of the evidence, in particular the expert evidence, requires an assessment of not only the opinions expressed by each of the respective experts, but also the tests and test results they rely on for those opinions. In this respect, similar tests carried out by Dr Vuletich and Dr Vidovich yielded significantly different results in the key areas of intrusion, confabulation and disinhibition.
I also need to have regard to the evidence as to the observed changes in Mr Della Franca's memory and behaviour since he suffered the brain injury. Further, my assessment of the evidence requires me to view the police interviews of Mr Della Franca.
Having considered the evidence and with great respect to everyone involved, it seems to me there would have been much benefit in Dr Vuletich and Dr Vidovich meeting to discuss their respective test results and opinions prior to the hearing. This would have allowed a discussion regarding the contradictory test results and the possible explanations for that contradiction. It also would have allowed discussion as to whether there was any benefit in conducting further tests, and in making further inquiries in relation to Mr Della Franca's behaviour subsequent to the brain injury.
Before turning to the expert evidence, I need to address the criterion in s 9(a) that Mr Della Franca is unable to understand the nature of the charge. Neither expert contends that Mr Della Franca is unable to understand the nature of the charge. As I raised with counsel at the conclusion of the hearing, and again with respect to all concerned, the expert reports do not appear to accurately identify the nature of the charge of murder, in particular the necessity that there be an intention to cause Mr Ditri's death, or to cause a bodily injury of such a nature as to endanger or be likely to endanger Mr Ditri's life. However, that being said, counsel for Mr Della Franca confirmed that Mr Della Franca understood the nature of the charge of murder and I accept and am grateful for that confirmation.

Expert evidence

I will start by assessing the evidence that Mr Della Franca has brain damage and thus has a mental impairment within the meaning of the Act.
Both experts were of the opinion that Mr Della Franca suffered from a mild neurocognitive disorder and that a contributing feature to that disorder is the brain injury which Mr Della Franca suffered in 1982.[20]
[20] Dr Vuletich's report, paragraph 12.11. Dr Vidovich's report page 15, lines 634 to 643. See also ts 64 and ts 159 - 160.
Appendix E to Dr Vuletich's report described a mild neurocognitive disorder as follows:
Mild Neurocognitive Disorder
A.Evidence of modest* cognitive decline from a previous level of performance in one or more cognitive domains (complex attention, executive function, learning and memory, language, perceptual-motor, or social cognition) based on:
1.Concern of the individual, a knowledgeable informant, or the clinician that there has been a significant decline in cognitive function; and
2.A substantial impairment in cognitive performance, preferably documented by standardized neuropsychological testing or, in its absence, another quantified clinical assessment.
B.The cognitive deficits do not interfere with independence in everyday activities (but greater effort, compensatory strategies, or accommodation may be required).
C.The cognitive deficits do not occur exclusively in the context of a delirium.
D.The cognitive deficits are not better explained by another mental disorder (e.g., major depressive disorder, schizophrenia).
*'modest' cognitive decline is defined in the DSM‑V as performance on standardised cognitive tests equivalent to z‑score = -1 to -2 (i.e., between 3rd and 16th percentile).
In oral evidence, Dr Vidovich described a mild neurocognitive disorder in this way:[21]
So you can think of it as an umbrella term, I suppose, for cognitive decline in the individual, where there may be subjective concerns as well as objective evidence, that the person is performing on test measure or, you know, in terms of their day-to-day thinking abilities, that those capacities have deteriorated from a level that would be ordinarily anticipate[d] for their age or - or their background or their circumstance. So the difference - the differences in the person's functioning are mild, in a sense that there's something that's not quite right, but functionally they're actually still managing okay. So they're not given a diagnosis of a major neurocognitive disorder, which is when we would be seeing that those cognitive issues are having a functional impact on the person's day-to-day abilities and, therefore, by giving the diagnosis of a major neurocognitive disorder, we may be suggesting they have dementia. When we're using that label of a mild neurocognitive disorder, we're identifying that the person's cognition is not where we would anticipate it to be but they're still managing independently per se across aspects of their day to day functioning. There's a change, but clinically and functionally the impact is not so severe that it's intruding on their ability to do their day to day things.
[21] ts 159.
The material provided to Dr Vuletich comprised within exhibit 3 included three reports on brain scans undertaken in relation to Mr Della Franca. While Dr Vuletich is not qualified to interpret the scans, she does have experience in interpreting the reports of the scans.[22]
[22] ts 66 - 67.
A computerised tomography (CT) scan was conducted on 30 December 2021,[23] magnetic resonance imagery (MRI) on 1 September 2022[24] and another MRI on 27 April 2023.[25] Dr Vuletich expressed a concern in her evidence that the reports on these scans reflected an inconsistency in the location of signs of atrophy (shrinkage) in Mr Della Franca's brain.[26] Because of that inconsistency, Dr Vuletich is not able to say with precision which parts of Mr Della Franca's brain are affected by atrophy. However, she was still able to identify which areas were identified in each report, and then explain how that area of the brain affects, broadly speaking, a person's functioning.
[23] Exhibit 3, page 442.
[24] Exhibit 3, page 448.
[25] Exhibit 3, page 450.
[26] ts 67, 70 - 71. The MRI's were conducted after Dr Vuletich had provided her report.
In respect of the report on the CT scan, Dr Vuletich said it referenced frontoparietal atrophic changes on both sides. She described the frontal lobes as overseeing a person's executive functions. She described the parietal regions as affecting a person's spatial awareness and temporal ordering of things and also that understanding of faux pas and social interactions would potentially be part of the functioning of the parietal regions.[27]
[27] ts 115 - 116.
In respect of the report on the first MRI, Dr Vuletich said it referred to the frontal and temporal lobes as being subject to atrophy.[28] Dr Vuletich said the left side of the temporal lobes are responsible for processing of verbal information, language and learning of verbally presented information. Further, the hippocampus (which is part of the frontal lobe) is important for consolidating new information into a long‑term memory. The right side of the temporal lobes affect the ability to retain and learn visual information.[29]
[28] Ibid.
[29] ts 116.
In respect of the report on the second MRI, Dr Vuletich said that it references no specific atrophy, but more generalised atrophy of the whole brain.[30] Dr Vuletich accepted this encapsulated atrophy of the frontal part of the brain.[31]
[30] Ibid.
[31] ts 117.
Dr Vuletich also gave evidence that the reports did not suggest the atrophy was due to natural ageing.[32] Further, Dr Vuletich gave evidence that once a brain begins to atrophy, it does not get better or grow back.[33]
[32] ts 71.
[33] ts 111.
The significance of the evidence regarding the reports on the brain scans is twofold. First, it is evidence that Mr Della Franca has suffered shrinking of the brain which is not due to natural ageing. Second, the areas in which atrophy is shown include areas of the brain that affect his functioning. There is however an important qualification to this second aspect. The reports do not demonstrate that Mr Della Franca is subject to confabulation, or disinhibition. Rather, at its highest, the reports suggest the atrophied parts of his brain include the areas which are responsible for memory and potentially understanding faux pas and social interactions.

Evidence of dementia

Dr Vuletich in her report stated that Mr Della Franca appears to show behavioural features that can be seen in neurodegenerative conditions such as Frontotemporal Dementia.[34] She said in her report that further medical work-up is required, including performing more detailed and up to date neuroimaging.[35]
[34] Dr Vuletich's report, par 12.14.
[35] Dr Vuletich's report, par 12.15.
In her evidence, Dr Vuletich explained that in her report she raised strong suspicions there was an emerging neurodegenerative condition over and above Mr Della Franca's brain injury.[36] She also said there is a question around a frontal based dementia and this is one of the explanations for the deficits she observed in Mr Della Franca.[37] Dr Vuletich described the evidence that she relied on for these views as being Mr Della Franca's historical and recent behaviour, which suggested to her that there was potentially behavioural change or a change in function. In her view, this raised a suspicion around a decline that is different to the original decline attributable to the brain injury.[38]
[36] ts 64.
[37] ts 118.
[38] ts 64 - 65.
Dr Vidovich in evidence said she did not have any concerns that Mr Della Franca had dementia.[39]
[39] ts 168.
It is not necessary for me to resolve this disagreement.
Dr Vuletich's evidence read together with her report reflects that she has a strong suspicion of an emerging neurodegenerative condition and that further work needs to be done to assess this. This does not go as far as to say Mr Della Franca does have such a condition. In any event, the principal issue I need to resolve is whether or not Mr Della Franca suffers from deficits such that he is unable to defend the charge. Whether those deficits arise from the brain injury, or a combination of the brain injury and emerging dementia, does not affect the resolution of that issue on the evidence before me.

Finding as to threshold issue that Mr Della Franca has a mental impairment

As I indicated at the outset, the State and defence agree that Mr Della Franca has a brain injury arising from the 1982 accident and that this constitutes brain damage within the meaning of the Act. I also agree. The evidence of Dr Vuletich and Dr Vidovich together with the reports on the brain scans satisfy me that he does have brain damage. Further, in coming to this finding, I have also had regard to Ms Pensini's evidence as to the instances of memory loss which Mr Della Franca suffered post the accident. Ms Pensini's evidence is referred to at [135] to [143] below.
I am therefore satisfied that Mr Della Franca has a mental impairment as defined by pt 3 of the Act.
The critical issues that I must determine are how Mr Della Franca's brain injury manifests itself and whether its manifestation results in him not being mentally fit to stand trial for the offence of murder. These issues predominantly turn on my assessment of the evidence in relation to intrusion, confabulation and disinhibition.
The important areas of testing undertaken in relation to those areas are the tests conducted in relation to his memory and in relation to his disinhibition.

Memory tests

In respect of the memory tests undertaken, these can be characterised into two separate groups. The first is Mr Della Franca's memory of stories and the second is his memory of words.
In relation to his memory of stories, Dr Vuletich conducted the logical memory subtests from the Wechsler Memory Scale IV test. This tests a person's immediate and then delayed memory of information from a story that is told to them. Mr Della Franca tested in the very low range for both the immediate recall and the delayed recall. Consequently, he obtained a very low score in the 3^rd to 9^th percentile for this test.[40]
[40] Dr Vuletich's report, par 8.7.3.
Mr Yovich's note of his meeting with Dr Vuletich (exhibit 5) states that intrusive responses were also evident on the more structured memory test and that Mr Della Franca often introduced extraneous information when responding to other questions or tasks. This reference is in respect of tests other than the 16-word version of the California Verbal Learning Test, which I deal with below. I understand the reference to the 'more structured memory test' is a reference to a subtest in the Weschler Memory Scale Test. Dr Vuletich did not give any specific examples of intrusive errors in relation to such subtests, nor did she give specific examples of intrusive responses when Mr Della Franca was responding to other questions or tasks. That being so, the evidence does not enable me to ascertain what were the intrusive responses the subject of this particular reference in the note, and more importantly, whether they are properly characterised as intrusive.
Dr Vidovich conducted a different memory test, which is part of the Neuropsychological Assessment Battery (the NAB test). This is similar to the Wechsler test.[41] Mr Della Franca's immediate and delayed recall ranged from low average to average with sound retention of the information/story.[42]
[41] ts 140.
[42] Dr Vidovich's report, page 8, lines 303 ‑ 305.
She described that the test was conducted in the following way. She told him a story, she asked for his immediate recall of it, waited for around 15 minutes and then asked him to tell her the story again without there being any repetition of it in the meantime.[43] She said that the amount of information he gave her was within low average to average limits for someone of his age.[44]
[43] ts 226.
[44] Ibid.
Dr Vidovich also said that in the testing she conducted, there was no intrusive information in Mr Della Franca's answers. That is, he did not add any extra information.[45]

Comparison

[45] Ibid.

As can be seen from the separate test results, they present a very different outcome. On Dr Vuletich's test, Mr Della Franca presented with a very low score for both immediate and delayed recall. On Dr Vidovich's test, the amount of information he gave her was within low average to average limits for someone of his age.
Neither expert gave an explanation as to why the outcomes on these two tests were significantly different.
Dr Vidovich did not observe any intrusive answers. On the evidence, I am not able to determine whether Mr Della Franca gave any intrusive answers in undertaking the test performed by Dr Vuletich.

California Verbal Learning Test

The California Verbal Learning Test is a word memory and learning test. There are two different configurations of the test, one being the 16‑word test and the other being the 9‑word test. Dr Vuletich conducted the 16‑word test and Dr Vidovich conducted the 9‑word test.
The 16-word test is a key basis upon which Dr Vuletich relies for her opinion that Mr Della Franca is prone to significant confabulation. I have set out at [89] - [94] the primary aspects of the 16-word test. Taken as a whole, they reflect that the test is not straightforward and there is a risk of fatigue affecting performance.
There is no overlap between the words used in the 9‑word test and in the 16‑word test. That is, different words are used for each test.[46] The words used are common everyday words,[47] although what might be a common everyday word for one person may not be a common everyday word for another.
[46] ts 150 ‑ 151.
[47] ts 151.
I set out below in full the aspects from Mr Yovich's note (exhibit 5) as to the intrusive answers which the defence suggests Mr Della Franca gave during the 16-word test:
The tester recites 16 words, and asks the subject to repeat them back. This is done 5 times in a row.
Mr Della Franca's results were:
1st test: 1 correct word, 1 wrong ('intrusive') word
2nd test: 5 correct, 1 wrong/intrusive
3rd test: 3 correct, 2 wrong/intrusive
4th test: 5 correct, 1 wrong/intrusive
5th test: 5 correct, 3 wrong/intrusive
Then a new list of 16 words is given: Mr Della Franca got 1 correct and included 2 wrong words (which were from the first list).
He is then asked to repeat the first list himself - he got 3 right and 2 wrong/intrusive.
Then he is prompted with cues - for example, 'tell me all the words that were fruits': he got 5 correct, 2 wrong/intrusive.
There is then a delay of 20 minutes, after which he is asked to repeat the first list again: he got 2 correct, 4 wrong/intrusive (including completely new words).
Finally, he is again prompted with cues as above: he got 2 correct and 2 intrusive.
These results were all in the 2nd to 9th percentile - from 'extremely low' to the bottom of 'low average'.
Intrusive responses were also evident on the more structured memory task, and he often introduced extraneous information when responding to other questions/tasks.
Dr Vuletich noted that Dr Vidovich administered a less demanding version of this test (involving a list of 9 words rather than 16) and did not note whether there were any intrusive words mentioned by Mr Della Franca.
Dr Vuletich in her evidence explained that the 16 words belonged to four categories, with four words in each category.[48] In her evidence she also said that after the distractor list is read out, the person completing the test is asked to repeat the first list back, not the second list.[49] However, this does not appear consistent with what is contained in the extract set out above from Mr Yovich's note. In that respect, when describing a new list of 16 words having been given, the note says 'Mr Della Franca got 1 correct and included 2 wrong words (which were from the first list)'. As this conveys that two of the wrong words were from the first list, it reflects that what Mr Della Franca was asked to do was repeat the new list. Perhaps at risk of further confusing the matter, exhibit 7 says that none of the intrusive words were from either list. In any event, I do not think this is of any significance to the overall outcome given the uncertainty only arises in respect of 2 out of the 20 wrong answers.
[48] ts 53.
[49] Ibid.

It took Dr Vuletich approximately 30 minutes to do the 16-word test with Mr Della Franca.[50]
[50] ts 55.
In respect of the distractor list, it is broken up into four categories, some of which are similar and some of which are different to the categories comprising the first list.[51]
[51] ts 53.
After Mr Della Franca is prompted by cues referable to the four categories of words in the first list, there is then a 20 minute break.[52] Mr Della Franca is not told that the test will be revisited.[53] The evidence did not descend to the detail of what happened during the break. After the break, he is asked to repeat the first list again. He is then again prompted by cues referable to the categories which comprise the words.[54]
[52] ts 54.
[53] Ibid.
[54] ts 53 ‑ 54.
There is then a 'recognition trial'. In this trial, a series of 50 words is presented to Mr Della Franca and he is asked to say yes if that word was on the first list, or no if it was not.[55] There is then another brief break and finally there is what is called a forced choice trial where two words are presented to Mr Della Franca and he is asked to identify which of those two words was on the first list.[56]
[55] ts 54.
[56] ts 55.
As can be seen from the extract from Mr Yovich's note, on the tests done by Dr Vuletich, there were 20 wrong or intrusive answers given by Mr Della Franca. As I understand it, this means that on 20 occasions he answered with a word which was not on the list that he was asked to recite words from.
Mr Yovich's note also noted that these results were in the 2^nd to 9^th percentile, so that is from extremely low to the bottom of low average.[57] Mr Della Franca's result was at 0.5% for his overall learning.[58]
[57] Exhibit 5, page 4.
[58] ts 52.
Turning then to the 9-word test which Dr Vidovich used. In addition to the difference in the number of words, there are two other important differences. The first is that the nine words are only repeated four times, not five times as with the 16-word test. Secondly, there is not a distractor list. Rather, the relevant distractor event is asking Mr Della Franca to count out aloud backwards from 100, for 30 seconds.
In respect of Mr Della Franca's performance on the 9-word test, Dr Vuletich did not note whether there were any intrusive words mentioned by Mr Della Franca.[59] Dr Vuletich also did not raise any concerns about his test results on the 9‑word test, although did note that it is less demanding than the 16‑word test.[60]
[59] Exhibit 5, page 4.
[60] ts 57.
Dr Vidovich noted in her report that Mr Della Franca made limited gains across the 9-word test.[61] His initial recall fell within the average range, however he failed to significantly capitalise on this across repeated learning opportunities, managing to only learn six of the nine words after four readings.[62]
[61] Dr Vidovich's report, page 8, lines 305 - 306.
[62] Dr Vidovich's report, page 8, lines 306 ‑ 310.
In respect of administering the 9‑word test, Dr Vidovich said that the words are spoken by the person administering the test with about 1½ seconds between each word.[63] Dr Vidovich then asked Mr Della Franca to tell her which of the words he can remember. He did not need to say them in the same order that Dr Vidovich spoke them.[64] This is done on four occasions. After providing the answers on the fourth occasion, Mr Della Franca is asked to count backwards aloud from 100 for about 30 seconds.[65] He is then asked to tell Dr Vidovich those words from the list that he remembers. There is then a break in the test and Mr Della Franca is not told that Dr Vidovich will be coming back to it.[66] She then took Mr Della Franca back to the test after about 10 to 15 minutes.[67]
[63] ts 147.
[64] Ibid.
[65] Ibid.
[66] ts 148.
[67] Ibid.
Dr Vidovich then asked Mr Della Franca to say as many of the words as he could remember. There is then a cued trial where he is prompted by reference to the categories of words.[68] There is then a recognition trial where specific words are read out to Mr Della Franca and he is asked to say yes or no as to whether or not the word was on the list.[69] And finally, there is a forced choice recall where two specific words are put to Mr Della Franca and he is asked which one of those two words was on the list.[70] This is done nine times.
[68] Ibid.
[69] ts 148 - 149.
[70] ts 149.
Dr Vidovich said that the test requirements for the 9-word and 16‑word tests do not stipulate what can and cannot occur during the break. Dr Vidovich accepted that if additional verbal information was introduced during the break, it can influence the response in some circumstances.[71] Dr Vidovich described that neuropsychologists usually avoid doing other verbal or language tasks during the break, so as to not interfere with a person's memory of the verbal information the subject of the test.[72] She said her practice is to use the NAB Mazes Test or the Trail Making Test during the break because they are not verbal or language tasks.[73] She does not know what measures Dr Vuletich introduced during the breaks.[74]
[71] ts 152 - 153.
[72] ts 152.
[73] Ibid.
[74] Ibid.
In terms of Mr Della Franca's results on the 9-word test, Dr Vidovich said that on the first recall he got four out of the nine words and the most he got was six.[75] She said in the first learning trial he was in the average range and by the fourth learning trial, because he had not made gains, his score was in the very low range for his age. [76] She estimated this as being at the 8^th percentile, so very low but on the cusp of low average range. [77]
[75] ts 227.
[76] Ibid.
[77] Ibid.
In Dr Vidovich's report, she said that there was 'some vulnerability to semantic interference on a recognition trial.'[78] Dr Vidovich clarified this in her evidence, saying that on the cued category trial Mr Della Franca gave her three extra words that belonged to the categories, but were not on the initial 9‑word list.[79] I understood Dr Vidovich's evidence was that this constituted semantic interference because while the three answers were wrong, they still related to the categories comprising the words. That is, they were not just random words. Dr Vidovich said she wasn't sure if she did an overall intrusion measure on this test as the total number of intrusions wouldn't have been significant.[80] To make it clear, there were no other intrusions in Mr Della Franca's answers other than the three that I have just mentioned. These three answers placed Mr Della Franca on the cusp of very low to low average range on that part of the test, which she also described as the lower end of normal.[81] She said his performance on this aspect of the test was close to the 8^th percentile for that aspect.[82]
[78] Dr Vidovich's report, page 8, lines 309 - 310.
[79] ts 228 - 229.
[80] ts 229.
[81] ts 229.
[82] Ibid.
In cross‑examination, Dr Vidovich was taken to Dr Vuletich's results for the 16‑word test. She said that overall Mr Della Franca's performance was at the 0.5^th percentile, which is consistent with Dr Vuletich's evidence.[83] In terms of Mr Della Franca giving 20 intrusive answers across the whole test, Dr Vidovich said this placed him in the percentile of 2 ‑ 3%. In her view this was a high abnormal number of intrusions and placed him towards an extremely poor result for intrusions.[84]
[83] ts 229; see also ts 52.
[84] ts 230.
In respect of the forced choice component, Dr Vidovich said that Mr Della Franca answered 9 out of 9 questions correctly on the 9-word test and he answered 13 out of 16 correctly on the 16-word test.[85] She said it is expected that the person taking the test should get a perfect score and it is rare for the person to make a number of errors on this part of the test.[86] She explained that the forced recognition test was a test of embedded measure of effort, saying it does not really tell us much except to tell us if the person is putting in effort.[87] She said Mr Della Franca's score of 13 out of 16 put him at less than the 2^nd percentile and probably closer to one or zero and it is very rare for people to make that many errors on the forced choice test.[88]
[85] ts 230.
[86] ts 231.
[87] ts 232.
[88] Ibid.
Dr Vidovich expressed concerns with Mr Della Franca's performance across the 16‑word test as a whole, saying that there were a number of atypical performances. She pointed to his immediate recall being only one word out of 16 words, the excessive number of intrusive errors and his poor performance on the forced choice component, describing this as a very easy component of the test.[89] She said that given these concerns overall, she would question how much weight to give to his performance as a whole on that test.[90] Further, Dr Vidovich said that in such circumstances she would have administered a different, yet similar, test.[91] These concerns were not raised in her report and therefore I do not have the benefit of Dr Vuletich's response to them.
[89] ts 236.
[90] Ibid.
[91] ts 237.
Dr Vidovich also said: [92]
Because the more we assess people in terms of the more test measures that we give them, the likelihood that they're going to - to bomb out or fail or do poorly on a measure increases. The other thing too is that as neuropsychologists, we're looking for - for patterns of - of behaviour and patterns that fit the hypotheses or certain diagnostic or clinical implications in terms of what we're observing and so if someone does poorly on - on one test, again, we know there's error associated with - with tests, we know that people can just be having a bad day or a bad moment so we want to make sure that what we're observing and what we're actually qualifying as a - a clinical indicator is actually evident across other aspects of their presentation and test performance.
[92] Ibid.
These observations reflect common sense. Where a person is subjected to a number of different unfamiliar tests over a significant period of time, there must be a sensible prospect that the person may have at least one 'bad moment' which undermines the validity of the results for the test or tests during which that occurs.
Dr Vidovich said that in her testing of Mr Della Franca, she did not see any evidence to suggest confabulation occurring.[93]
[93] ts 236.
She also said that a large number of intrusions is not necessarily evidence of a vulnerability to confabulation, but it can be.[94]

Comparison

[94] ts 233.

Mr Della Franca did not do well on either the 16-word or the 9-word test. However, the significance of these tests in this case is not so much Mr Della Franca's capacity to learn over the course of the test, but rather his vulnerability to intrusive errors. In this respect, on the 16‑word test, there were 20 such errors. Further, with at least 18 of those errors, none of the answers he gave were from the first list or the distractor list. I do not know whether the errors were 'semantic errors', by which I mean were related to the categories comprised within the 16-word list.
On the other hand, there were only three intrusive errors on the 9-word test. These words came from the categories comprising the 9‑word list, however were not actually on the list itself. Dr Vidovich regarded this number of intrusive errors overall as so low that she did not conduct an overall measure for the errors.
Dr Vidovich has significant concerns with Mr Della Franca's results on the 16-word test, which to her mind affected the reliability of that test to such an extent she would have administered a different, yet similar, test. I do not have the benefit of Dr Vuletich's response to these concerns. While the defence sought to undermine the possible validity of those concerns on the basis that they were not identified in Dr Vidovich's report, I do not consider that undermines their rationale.
I am conscious of Mr Yovich's caution that I not attempt 'amateur neuropsychology' in assessing the evidence. The validity of Dr Vidovich's concerns can however readily be assessed without falling into such an error. In this respect, Dr Vidovich's concerns as to Mr Della Franca only recalling one word correctly from 16 words on the first run of the test, and getting three errors on the forced choice part of the test, all resonate with the same concern - a lack of effort. This could have been because of fatigue, or confusion from the test itself, or some other reason, however they are not concerns that can be dismissed out of hand.
Also, Dr Vuletich was not apprised of the very low level of intrusions which Dr Vidovich had encountered on the 9-word test. Therefore, this was not something which Dr Vuletich considered in assessing the reliability of the 16-word test that she conducted.

Disinhibition tests

In relation to testing disinhibition, Dr Vuletich did what is called the Stroop Neuropsychological Screening Test.[95] She described this test as requiring people to read out words that describe a colour, where the word is written in a different colour ink to the word itself. So, for example, the word blue is written in red ink. The first part of the test is to have the person read the word out. The second part is to have the person read out the colour of the ink, as opposed to the word itself.[96]
[95] ts 58.
[96] ts 59.
On the Stroop test, Mr Della Franca's results were in the 2^nd to 4^th percentile.[97]
[97] ts 61.
Dr Vuletich also gave Mr Della Franca the Trail Making Test from the Delis‑Kaplan Executive Functioning System. She described this test as follows. The first component is around visual scanning, so a person's ability to scan and identify and pay attention to visual information.[98] The second and third parts of the test look at sequencing ability, so a person's ability to maintain letters in alphabetical order or numbers in numerical order.[99] The fourth part of the test requires the person to flexibly shift between two lines of thought. The example she gave was alternating between numbers and letters. She said Mr Della Franca had a mild difficulty with switching on the test,[100] which I take to be a reference to his performance on the fourth part.
[98] ts 63.
[99] ts 64.
[100] ts 64.
Dr Vidovich started to give the Stroop test to Mr Della Franca. She said the test has words set out in separate columns. She pointed to the natural tendency of a person to read from left to right, rather than down.[101] She said that Mr Della Franca struggled to read down the columns. Therefore, Dr Vidovich did not think she was going to be accurately able to interpret his performance on the remainder of the test.[102] She described this first component as the baseline task for the test.[103]
[101] ts 204.
[102] ts 205.
[103] Ibid.
Dr Vidovich therefore conducted a different test, known as the Hayling Verbal Sentence Completion Test.[104] Dr Vuletich was familiar with this test and she described it in her evidence as follows. The person administering the test reads out a sentence with the last word missing. The words read out strongly suggest the final word. [105] In the first run of the test, the person has to finish the sentence with the expected response. In the second run, the person has to finish the sentence with a completely novel or unfamiliar word that is unconnected to the sentence.[106] The reading out of the partially complete sentence by the person administering the test removes potential obstacles that might arise if the person taking the test has reading difficulties.[107]
[104] ts 59.
[105] ts 59 - 60; see also ts 206.
[106] ts 59.
[107] ts 60.
Dr Vuletich thought from reading Dr Vidovich's notes that Mr Della Franca tested around the 5^th percentile on the Hayling test.[108] However, Dr Vidovich explained in her evidence that the Hayling test is scored differently and that a score of 5 on the Hayling test puts someone in the 25^th percentile. She said this put Mr Della Franca at the lower end of the average range.[109] She thought he did really well on this test.[110]
[108] ts 61.
[109] ts 207.
[110] Ibid.
Dr Vidovich also tested Mr Della Franca's inhibition by doing a visual generativity test involving the connection of dots. Dr Vuletich did not do this specific test.
The visual generativity test requires the person taking the test to connect dots. The test includes black and white dots. The person starts with only connecting the black dots, then only connecting the white dots and then in the third part of the test they go from a black to a white to a black to a white.[111] Dr Vidovich described this as requiring the person to inhibit the desire to just do what they did before.[112] In relation to this visual test, she said in her report that Mr Della Franca was able to switch between attentional requirements.[113]

Comparison

[111] ts 203 - 204.

[112] ts 204.

[113] Dr Vidovich's report page 9, lines 363 ‑ 364.

The matters outlined at [117] - [124] again reveal quite a significant disparity in the outcome of the tests conducted by Dr Vidovich and Dr Vuletich.
On the Stroop test conducted by Dr Vuletich, Mr Della Franca did poorly. He had significant difficulty overcoming the instinct to read out the word itself, as opposed to the colour ink in which the word was written.
Mr Della Franca had a mild difficulty on switching between two lines of thought on the Trail Making Test conducted by Dr Vuletich.
Dr Vidovich aborted the Stroop test and conducted a sentence completion test in which Mr Della Franca performed at the low end of the average range. She also tested Mr Della Franca's inhibition by doing a visual generativity test, in which he was able to switch between the requirements.

Additional matters regarding disinhibition

Dr Vuletich in her evidence also gave examples of disinhibited conduct on the part of Mr Della Franca. She described these instances as being overly familiar disinhibited conduct. She spoke of how her interview with Mr Della Franca took place during Covid restrictions. This required that there be limited physical interaction between them. She said Mr Della Franca leant over, touched her wedding ring and asked her personal questions around that.[114] She also referred to the scenario in one of the police interviews where Mr Della Franca had used one of the detectives to demonstrate the position of the firearm in relation to Mr Ditri and the other detective had cautioned Mr Della Franca to be careful, saying 'don't break his leg'.[115] This occurred during the interview on 30 August 2021 starting at 10.43 am.[116] It took place in this way. Mr Della Franca asked Detective Sergeant Martin to stand up so Mr Della Franca could demonstrate the respective body positions between him and Mr Ditri. Mr Della Franca said 'now, if you get a broken leg, it's not my fault' and pointed to Detective Sergeant Dowding and said 'you're a witness'.[117] Detective Sergeant Dowding responded 'don't break his leg'.[118] This comment was a response to what Mr Della Franca had said. It was not a concern arising from how Mr Della Franca was demonstrating the body positions.
[114] ts 76.
[115] ts 77.
[116] Exhibit 1.11.
[117] Exhibit 1.11, pages 22 - 23. This exchange in the video occurred in the order set out at [129], not in the order set out in the transcript of the video.
[118] Exhibit 1.11, page 23.
Dr Vuletich also explained that the rating scales which Ms Pensini and Mr Della Franca each completed rated his disinhibition as very elevated.[119] However, there is not any delineation as to the type of conduct the subject of those scales.
[119] ts 76.
Dr Vidovich explained that where there is disinhibition in the context of a neurodegenerative condition, the behaviour becomes progressively worse over time. She said that:[120]
So the person has greater difficulty inhibiting. That those difficulties in monitoring themself become more broad or dense across other types of - of, you know, components of their day‑to‑day functioning.

Ms Pensini's evidence

[120] ts 164 - 165.

By way of brief background to Ms Pensini's evidence, she met Mr Della Franca when he was around 19 or 20 years of age and they married about two years later. In 1982, Mr Della Franca fell off the back of a moving vehicle and landed directly on his head and was immediately knocked unconscious.
Ms Pensini's evidence was directed to Mr Della Franca's memory loss and change in behaviour post this accident.
It is helpful to set out in some detail what Ms Pensini said regarding Mr Della Franca's memory post the incident. This is because what she did not say is as significant as what she did say.
In examination-in-chief, Ms Pensini described Mr Della Franca's memory loss as follows:[121]
Like, he would forget, like, when he was really busy his mind would be - he'd forget things. So in forgetting things, he - that would make, he's ‑ cause of his memory, he'd become confused about things because of his memory and not being there. You hadn't - I hadn't told him this and that. But he still worked all right on the farm and that. But he - he, yeah, was just the processing of things.
What sort of things would he forget?- - - Like, he'd drive up to the farm and be gone, and then come home - this is at night-time - and not even known he'd gone. Generally around times when he was quite a lot of work, a lot of pressure.
Okay. And were there other things that he would forget - - - Just - because of those times when he was not having any memory, everything he would forget.
[121] ts 18 - 19.
Ms Pensini also gave evidence as her observations of Mr Della Franca in the period more proximate to the alleged events. She said:[122]
He'd just sometimes look as if you're totally confused even though, yeah, he just gave me that look. Whether he was or not, that was the look I got from him sometimes. But I didn't talk a lot to him.
[122] ts 24.
In cross-examination, she described his memory loss as follows:[123]
It wasn't a memory loss like, 'Where did I put my cup of coffee,' or things like that but he had a lot of memory loss as far as in when he was working hard, he - he would just forget what he'd done, that kind of thing.
When you say, 'He would forget what he had done,' do you mean he'd forget - he'd forgotten what he had done that day?‑‑‑Yeah, in the hours previously that he'd forgotten he'd driven up and done work and come back. He had … no recognition … that he even left the home.
…
Didn't you tell Dr Vuletich that the issues with Mr Della Franca's memory came about at times when he was stressed or fatigued?‑‑‑Yes, mainly fatigue from the work cos there was such a heavy workload with the amount of potatoes and that he was growing, so yes, he became - he was - got tired, you know, he was well - hard worked a lot and long hours.
[123] ts 27 - 28.
In re-examination, she described how Mr Della Franca would get memory blanks, saying:[124]
…he would get blanks because he was so busy from work and that's how I would notice it more.
[124] ts 34.
The effect of Ms Pensini's evidence is that Mr Della Franca would forget what he had done, predominantly while under stress or fatigued. That is, there were gaps in his memory. Her evidence is not to the effect that he would explain his recall of an event in a way that she later found out to be untrue.
In terms of Mr Della Franca's change in behaviour post the incident, she said that Mr Della Franca had no filter in how he spoke to people and that before the accident, Mr Della Franca was mindful of other people, while after the accident he was not.[125] She also said that he would make a decision 'off the cuff' and not think of the consequences.[126] She did not give any particular examples.
[125] ts 28, ts 34.
[126] ts 20.
In terms of the period more proximate to the offending, Ms Pensini gave this evidence:[127]
You know, just generally watching him when I was around him and chatting to others how he was, his boundaries weren't there.
All right. And are we talking about the same as immediately after the accident or different?- - -No, a lot different.
Or better or worse?- - - He was a lot worse.
[127] ts 24.
Without there being more specificity to what Ms Pensini was describing, it is difficult to know whether what she was describing was a result of an older man not adjusting to the changes in social norms over a 40 year period, or was the result of disinhibition.
She also described how Mr Della Fanca had no concept of time. A particular example she gave was that he would arrive two hours late to a child's birthday party.[128]

Mr Della Franca's observations to Dr Vuletich and Dr Vidovich regarding the impact of the accident on him

[128] ts 23.

In Dr Vuletich's report, she recorded Mr Della Franca's observation of his change in memory following the accident as follows:[129]
He also suffered a head injury in a motor vehicle accident on his farm in 1982. He explained that he had fallen off the back of a moving vehicle (Jeep), and that he had 'never been the same since'. When asked to explain further he said that his 'memory was gone' that he had 'no balance' and that his 'spelling was gone'. Mr Della Franca said that he had been knocked out though he was not sure the duration of LOC [loss of consciousness]. He could recall leaving the shed and standing on the back end of the Jeep, and telling the driver to 'speed up' sometime before he fell off. He understood that he had attended Pemberton hospital initially (though he cannot recall this explicitly), and was then flown to Perth where he remained in hospital for 'a few months'. His first memory after the accident was waking in Royal Perth Hospital, feeling hungry, and eating '2 kilograms of bananas'. He did not know how many hours or days after the accident this had been ('I can't remember. Flip a coin').
[129] Dr Vuletich's report, page 10, par 5.4.3.
The reference to eating two kilograms of bananas is intriguing, however nothing really can be taken from such a remark in circumstances in which it is not known what medication Mr Della Franca was on when he woke and how this may have affected his functioning.
In Dr Vuletich's report, she recorded Mr Della Franca's observation of his changed behaviour following the accident as follows:[130]
He noted that before this accident, he 'used to fly off the handle', then it was 'good it smacked me on the head' as it had set him 'on the right path'.
[130] Dr Vuletich's report, page 10, par 5.4.5.
Dr Vuletich in her evidence recounted an exchange with Mr Della Franca during their interview as follows:[131]
… there was an example he gave [in the] interview talking about his preference to make decisions using premonitions. And he says, 'I just - it just pops into my head and I do it, that's how I decide'. And I asked him, 'Well, how do you know if that's a good solution?' and he laughed and said, 'That's a good point' – 'That's an interesting point' or something like that. Didn't elaborate further.
[131] ts 73.
As can be seen from this passage, Mr Della Franca did not give examples of any such decisions. As I have already explained, Ms Pensini in her evidence did not give any examples of Mr Della Franca acting in such a way.
In Dr Vidovich's report, she recorded Mr Della Franca's observation of his changes following the accident as follows:[132]
Cognitively, Mr Della Franca stated that his memory was one of the 'biggest changes' post the accident, with him still repeating himself these days. Whilst he could remember things from 'years ago', he would struggle with more day-to-day recall, however he did not believe that there had been any decline in his memory in more recent times. He said he had always been 'airy fairy' when it came to concentration, and needed to focus on one thing at a time. He believed he was 'pretty slow' with respect to his thinking processes and that he was never the same after he fell off the back of the vehicle. He was not one to rush and said he could lose track and be forgetful. Possibly word finding difficulties were worsening over time, though his writing had stayed the same. He was also aware that he would have more trouble keeping numbers in his mind, or with performing mental calculations, and that he would need to check this. Whilst he could forget where he was travelling to, he said he would 'zone out', with this possibly more of an attentional issue. Since having had his head injury, he had relied on checklists and writing things down to assist with planning and organisation.

Additional matters generally

[132] Dr Vidovich's report, page 6, lines 211 to 225.

Dr Vuletich in her report set out her observations as to Mr Della Franca's orientation in time and place. She stated that he was able to give an accurate account of recent world news suggesting preserved contemporary knowledge.[133]
[133] Dr Vuletich's report par 8.2.
Dr Vuletich also described Mr Della Franca's personal history as given by him to be loosely consistent with information outlined within the documents she had reviewed, although specific dates and details varied.[134]
[134] Dr Vuletich's report par 8.7.1.
These matters demonstrate an ability to recount matters to a degree of certainty and precision. They do not reflect the presence of intrusive answers, there being no suggestion of extraneous information inserted into Mr Della Franca's answers.
Further, both Dr Vuletich and Dr Vidovich explained that during their testing of Mr Della Franca, he sought clarification when he did not understand the instructions.[135] Dr Vuletich also said Mr Della Franca was comfortable with seeking clarification and seemed capable of doing so.[136]

Dr Vuletich's comments on aspects of Mr Della Franca's interviews with police

[135] ts 166 - 167.

[136] Dr Vuletich's report par 6.7, ts 97.

Dr Vuletich in her report described four instances of what were described as unreliable or inconsistent remembering on the part of Mr Della Franca during his interviews with police.[137] Dr Vuletich frankly acknowledged in her report that there are multiple potential interpretations for this, 'including conscious falsification of detail (i.e. deception or lying), and unintentional confabulation and associative retrieval, or delusional beliefs'.[138]
[137] Dr Vuletich's report par 10.4.
[138] Dr Vuletich's report par 10.5.
Having considered the examples given, in my view three of the four examples are not examples of confabulation. I say that because in relation to those three examples, there is no suggestion that Mr Della Franca has inserted additional information into his answer.
I will deal briefly with the examples of unreliable or inconsistent remembering referred to in Dr Vuletich's report.
Paragraph 10.4.1. This concerns the first three interviews that were conducted by police officers with him over 28 and 29 August 2021. In those interviews, Mr Della Franca was asked whether he had any injuries. Dr Vuletich mentioned how in answer to that question, he described having an arm and hip injury, but did not mention his brain injury. In the fourth interview conducted on 30 August 2021, he mentions having had severe brain concussion when discussing his injuries.[139]
[139] Exhibit 1.11, page 3.
However, in the interview on 29 August 2021 starting at 9.11 am, when Mr Della Franca was being asked about whether he drank alcohol or took medication, Mr Della Franca explained that he has had three or four head injuries and if he drinks alcohol, he gets splitting headaches.[140] He refers again to those head injuries later in that interview while explaining why he is fearful of being punched to the head.[141] In the interviews from 30 August 2021 onwards, Mr Della Franca consistently refers to his brain injury, including in relation to it affecting his memory.
[140] Exhibit 1.7, page 39.
[141] Exhibit 1.7, page 63.
His answers in the first three interviews as referred to by Dr Vuletich could well be explicable by Mr Della Franca understanding the police officer to be asking whether Mr Della Franca had any current physical injuries. Once it became apparent to Mr Della Franca that his head injury may be a matter of relevance, he consistently made reference to it. Moreover, his answers do not reflect an intrusive error.
Paragraph 10.4.2. This addresses Mr Della Franca not being able to identify with precision when he lost a particular block of land where he previously fed his cows. His answer was 'I've been feeding them there for 8 years - 6, 8 years - 10 years. Actually, it's been yeah -yeah, since I lost that block, so that's -it was, are uh - I can't remember. There's a big mound'.[142] Whether and to what extent this answer is unreliable does depend on when Mr Della Franca lost the block. If he did lose the block within a period of 6 to 10 years prior to the interview, then the unreliability of the evidence does not appear to be of any significance, as it would not be surprising that he did not have a precise recollection of when it took place. Further, the answer does not reflect any intrusive error. Rather, the answer reflects a lack of precision as to when the block was lost. On the other hand, Mr Della Franca was able to give detailed answers as to the blocks that he owned and drew a plan in hand to set this out.
[142] Exhibit 1.5, page 29.
Paragraph 10.4.3. This refers to Mr Della Franca speaking of a telephone call he had with a bookkeeper who does his business activity statements. He was quite specific about the amount of the cheque ($669.40) they discussed, but was uncertain as to when he spoke to the person. The questioning overall was directed to what Mr Della Franca had done on the day prior to the interview, which is the day when Mr Ditri was shot and died. Ultimately, Mr Della Franca said that he thinks the bookkeeper rang him the day before (so that is two days before the interview) because he was in his Jeep and he had his cheque book in his black folio. [143] A possible explanation for his answer is that he recalled the amount of the cheque as that was the subject of the discussion, however given everything else that was happening at the time, he could not be precise as to when he actually spoke to her. Also, without more, this example does not suggest intrusive errors in his answers. In that respect, there is no suggestion that the amount of the cheque was wrong.
[143] Exhibit 1.5, page 32.
Paragraph 10.4.4. This deals with Mr Della Franca's confusion regarding his mobile service provider and also the landline connections to his house and to his mother's house. His answers are quite confusing. They may possibly be suggestive of intrusion errors, however without actually knowing what the telephone arrangements were at the time it is not possible to assess this.
On this analysis, in my view only one of the four examples could possibly be regarded as reflecting intrusive errors and confabulation. In respect of that one matter, paragraph 10.4.4, it is not possible on the evidence to assess whether or not that is the case.
Accordingly, I do not consider the examples from the interviews set out in Dr Vuletich's report support a conclusion of confabulation, although in fairness to Dr Vuletich, she does not suggest that to be the case. Rather, she suggests confabulation is one of the possible reasons for those answers.

Further observations on the interviews

I make the following further observations from having watched the videos of Mr Della Franca's interviews with police officers. Mr Della Franca has a satisfactory command of the English language. At times, Mr Della Franca gave quite long winded and rambling answers. This predominantly occurred when he was initially asked to explain what he had done on the day Mr Ditri went missing. However, he also demonstrated an ability to answer more targeted questions quite concisely.
His answers reflect a paranoia that people were stealing his livestock and avocados, poaching marron from his dam and that this was a cause of great frustration for him. Dr Vuletich gave evidence that there is no diagnosis that Mr Della Franca has a delusional thought disorder.[144]
[144] ts 107.
In the first interview which was conducted on 28 August 2021, Mr Della Franca sought to minimise his interactions with Mr Ditri. In the first of the two interviews conducted on 29 August 2021 (the following day), Mr Della Franca substantially changed his account of what he says happened. In that interview, he said he 'was bullshitting a bit' about his movements on the day when Mr Ditri went missing.[145] Mr Della Franca then said what happened was that in the afternoon he shot a number of rounds into his paddock of avocados to scare off intruders. He then went to check the paddock and found Mr Ditri, who was dead. He wrapped Mr Ditri's body in a bag, took the body in his car to the river near Larkin bridge and threw the body in the river.
[145] Exhibit 1.7, page 5.
The interviewing police officers asked whether he had shot Mr Ditri in the tip. Mr Della Franca initially said no.[146] The police officers perceived some hesitation on Mr Della Franca's part when saying this and pressed him on it. Mr Della Franca then said he had shot Mr Ditri at the tip, in effect saying they had a scuffle and as part of the scuffle he accidentally pulled the trigger on his gun, it went off and killed Mr Ditri.[147] Mr Della Franca initially said he shot Mr Ditri with Mr Della Franca's .22 rifle. Mr Della Franca later said that he shot Mr Ditri with a shotgun that he used on his farm.[148] When asked later why he said he shot Mr Ditri with the .22 rifle, Mr Della Franca explained that the shotgun was licensed in his son's name and he didn't want his son to get into trouble.[149]
[146] Exhibit 1.7, page 42.
[147] Exhibit 1.7, pages 43 - 44.
[148] Exhibit 1.7, page 73.
[149] Exhibit 1.7, page 77.
These accounts of what happened would seem to reflect Mr Della Franca minimising his responsibility for Mr Ditri's disappearance and also a concern that his son might get into trouble for allowing him to have the shotgun. They do not seem to suggest confabulation or disinhibition.
Shortly prior to the commencement of the second interview conducted on 30 August 2021, Mr Della Franca spoke to a lawyer.[150] During that interview, broadly speaking, he maintained a 'no comment' approach to answering the questions. On the morning of the interview on 2 September 2021, Mr Della Franca again spoke to a lawyer.[151] During that interview, broadly speaking, he again maintained a 'no comment' approach to answering the questions. These two interviews overall reflect that Mr Della Franca had been advised by his lawyer not to answer the police officers' questions and he was able to comply with this advice. The interviews also reflect that Mr Della Franca had an ability to inhibit in accordance with the legal advice.
[150] Exhibit 1.13, page 3.
[151] Exhibit 1.14, page 5.
In the interview conducted on 10 September 2021, Mr Della Franca answered a lot more questions, but still refused to answer at particular points in the interview. It is not clear on the material what communication he had with his lawyer prior to this interview.
In the interview conducted on 30 August 2021, Mr Della Franca made what might be thought to be a gender inappropriate remark. However, Mr Della Franca immediately recognised this, saying 'Oh, sorry, didn't mean to say that'.[152]
[152] Exhibit 1.11, page 21.
Mr Della Franca also was able to pick up and retain new concepts across the interviews. For example, he became familiar with the process whereby a magistrate needed to approve his continued detention in custody without being charged. Also, at the conclusion of the second interview on 29 August 2021, there was a problem with the recording device. The police officers thought it had not properly recorded the interview. This was looked into while Mr Della Franca and at least one of the officers remained in the room. They discussed various matters. Two further examples of Mr Della Franca being able to pick up and retain new concepts arise from this discussion. One of the police officers raised that he thought Mr Della Franca's shoulder injury was likely a rotator cuff injury.[153] In the interview conducted the following morning (30 August 2021), Mr Della Franca picked up on this and referred to his shoulder injury being a rotator cuff injury.[154] Also, at the start of the interview on 30 August 2021, when the police officer said 'the discs in there are recording what we're speaking',[155] Mr Della Franca said 'discs in there this time'. Mr Della Franca's words are not transcribed, but they are clear from watching the video of the interview. Mr Della Franca was plainly referring to the issue with the recording that had happened at the conclusion of the interview on 29 August 2021.
[153] Exhibit 1.9, pages 48 - 49.
[154] Exhibit 1.11, page 17, although it may be that Mr Della Franca described it as a 'rotor cuff' injury, not a rotator cuff injury.
[155] Exhibit 1.11, page 6.

Overall, from having watched the interviews, in my view they do not support a finding that Mr Della Franca is vulnerable to intrusive errors, confabulation or disinhibition.

Overall analysis

I can well understand Dr Vuletich's concerns arising out of Mr Della Franca's poor performance on the Weschler test, the California 16-word test and the Stroop test.
However, Mr Della Franca's performance on the tests which Dr Vidovich conducted in respect of his memory and disinhibition did not reflect a vulnerability to intrusive answers, confabulation or disinhibition.
On the evidence, the test results that contain specific detail of intrusion are in relation to Mr Della Franca's performance on the 16-word California Test. Dr Vidovich had a number of concerns with Mr Della Franca's performance on that test, which raise doubt about the validity of the test results. I am not able on the evidence to discount those concerns. On their face, they provide a rational basis for concern.
The tests which Dr Vidovich conducted do not reflect any significant vulnerability to intrusion. Dr Vuletich did not raise any concerns with the results on those tests.
Further, the tests which Dr Vidovich administered in relation to Mr Della Franca's memory, learning and disinhibition had significantly different components to those which Dr Vuletich administered. It is therefore unlikely that the reason for Mr Della Franca's improved performance was that he was familiar with the tests from having already done them with Dr Vuletich.
Ms Pensini's evidence does not support a finding that Mr Della Franca is vulnerable to intrusion. Her evidence reflects him having memory gaps. It does not reflect him filling in the gaps with extraneous information.
It has now been about 40 years since Mr Della Franca suffered the brain injury. Those close to Mr Della Franca are unlikely to appreciate the concepts of intrusion and confabulation. However, this does not mean they will not have noticed if Mr Della Franca was regularly filling in gaps in his memory with intrusive information. Common sense suggests that if Mr Della Franca was significantly vulnerable to making intrusive errors, one or more of the people close to him would have noticed the characteristics of such errors over the 40 years since his brain injury. For example, if Mr Della Franca's explanations for what he was doing on the farm bore no relationship to what he in fact was doing, then common sense suggests that those around him would have noticed this and remembered it.
While Dr Vuletich and Mr Yovich suggest there are further examples of intrusive answers in Mr Della Franca's responses to Dr Vuletich, these have not been identified. Accordingly, I am not able to assess the extent to which there may be intrusive answers, and I do not have the benefit of Dr Vidovich's opinion on them.
In relation to disinhibition, again, the test results from Dr Vuletich and Dr Vidovich are in stark comparison to each other.
Ms Pensini's observations of Mr Della Franca's change in behaviour post the brain injury do not accord with Mr Della Franca's own observations as noted by Dr Vuletich in her report. Ms Pensini says that Mr Della Franca had no 'filter' after the brain injury. She did not give any specific examples. Mr Della Franca says the brain injury set him right. Defence counsel urged me to accept Ms Pensini's evidence. However, I do not see how I can prefer her evidence over Mr Della Franca's own observations. This is especially so given neither of them provided any significant detail of those changes. Further, the generality of Ms Pensini's evidence does not permit a reliable assessment to be made as to whether the changes she observed were a result of disinhibition.
The particular examples of disinhibition given by Dr Vuletich reflect Mr Della Franca acting in an overly familiar way. This reflects that Mr Della Franca had a misguided approach to personal interactions, so reflects his misunderstanding of appropriate boundaries. The examples do not reflect Mr Della Franca making decisions without any thought.
The evidence demonstrates that Mr Della Franca was comfortable in seeking clarification regarding the tests and was capable of doing so. This suggests he would be capable of doing likewise in making decisions regarding the conduct of the trial and in following the course of the trial itself. Also, he was able to abide by his legal advice in the police interviews, at least where that advice was given shortly prior to the start of the interview.
Dr Vuletich in her evidence did refer to Mr Della Franca saying his preference was to make decisions using premonitions, however Mr Della Franca did not give any particular examples. Mr Della Franca did not appear to appreciate it was unwise to make decisions in such a way. However, it is difficult to place much significance on this without knowing the types of decisions he was talking about when he spoke of making premonition based decisions. Further, if Mr Della Franca was prone to premonition based decision making post his brain injury, common sense suggests that those close to him would have recalled particular instances of this occurring.
Further, as I have explained at [157] to [174], in my view Mr Della Franca's interviews with police officers do not demonstrate a vulnerability to intrusive errors, confabulation or disinhibition. They do reflect that Mr Della Franca has a tendency to give long winded answers, however they also demonstrate that Mr Della Franca is able to be constrained when given appropriate guidance.
Bearing all these matters in mind and weighing up all of the evidence, I am not satisfied that Mr Della Franca is vulnerable to making intrusive errors, nor am I satisfied he is vulnerable to confabulation. I also am not satisfied that Mr Della Franca suffers from disinhibition such that it results in him having a lack of control over his thought processes.
Accordingly, I am not satisfied on the balance of probabilities that he is unable to properly defend the charge. It follows that I am not satisfied on the balance of probabilities that he is not mentally fit to stand trial for the offence of murder. Therefore, the presumption that Mr Della Franca is mentally fit to stand trial has not been displaced.
That being said, I do consider that in advance of a trial an appropriate framework for the conduct of the trial needs to be put in place. This should address the ability for Mr Della Franca to take notes during the trial, the regularity of breaks, the provision of written information to Mr Della Franca which summarises the evidence as it progresses, the opportunity for counsel to discuss the evidence with Mr Della Franca as the trial progresses and guidelines being put in place for the taking of evidence from Mr Della Franca if he elects to give evidence. This final matter might benefit from having a ground rules type hearing in advance of the trial that addresses issues such as the brevity and cadence of the questions put to him, the use of ordinary everyday language and how regularly breaks will be taken during the taking of his evidence. I expect there would be benefit in having Dr Vuletich and Dr Vidovich comment on these steps. For the moment, I will leave that to the parties.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CA
Associate to the Honourable Justice Lemonis
1 NOVEMBER 2023