The State of Western Australia v O'Meara - [2018] WASC 121

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- O'MEARA [2018] WASC 121
CORAM:   JENKINS J
HEARD:   26 MARCH 2018
DELIVERED          :   20 APRIL 2018
FILE NO/S:   INS 167 of 2017
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
DYLAN CLINTON O'MEARA
Accused

Catchwords:

Nil

Legislation:

Criminal Code (WA), s 631
Criminal Law (Mentally Impaired Accused) Act 1996, s 8, s 9, s 10(1), s 12(2)

Result:

Accused is mentally fit to stand trial

Category: B

Representation:

Counsel:

Prosecution	:	Mr C Astill
Accused	:	Ms J G Fordham

Solicitors:

Prosecution	:	Director of Public Prosecutions (WA)
Accused	:	Scerri Legal

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

Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1
Ngatayi v R [1980] HCA 18; (1980) 147 CLR 1
R v Birks (1990) 19 NSWLR 677

JENKINS J:

Introduction

The accused is charged on indictment that on or about 8 April 2016 at Rockingham he unlawfully killed Shisui‑Grady George O'Meara (the deceased). The dates set for the accused's trial were vacated so that the question of the accused's mental fitness to stand trial could be determined. The question of whether the accused is not mentally fit to stand trial was raised as a result of neuropsychological and psychological reports about the accused which were prepared and disclosed during the course of the prosecution.
I ordered that the accused be examined by a psychiatrist and a psychologist in relation to whether he was mentally fit to stand trial[1] and listed a hearing to determine the issue.
[1] Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 12(2) (the Act).
Pursuant to those orders the court received a report dated 19 March 2018 from Dr Mark Hall, consultant forensic psychiatrist, and a report dated 2 March 2018 from Ms Tina Marley, clinical psychologist. Dr Hall and Ms Marley gave evidence at the hearing. Additionally the accused called evidence from and tendered reports from Dr James McCue, a clinical psychologist/forensic psychologist (Registrar) and Dr Mandy Vidovich, clinical neuropsychologist.
The accused submits that because of mental impairment he is unable to understand or exercise the right to challenge jurors, unable to follow the course of the trial, unable to understand the substantial effect of the prosecution evidence and unable to properly defend the charge.
Due to the accused's complex psychiatric and psychological make‑up he is mentally impaired. Nevertheless, I am not persuaded that because of his mental impairment he is mentally unfit to stand trial. I am satisfied that both his natural capacities, his current and future learning and the accommodations which can be made for him in the criminal trial process are such that he is mentally fit to stand trial.
I accept that the accused's capacities may fluctuate during the course of a trial. The issue of his fitness to stand trial can be revisited during the course of the trial if that fluctuation is such as to render him unable to understand the relevant criteria or to deprive him of a relevant capacity.

The prosecution case

The State's statement of material facts contains the following allegations:
The accused is the natural father of [the deceased]. The deceased was born 2 September 2015 (and) at the time of [his death] was 7 months of age.
The accused was living with his partner in a defacto relationship and the victim in a shared accommodation situated at 19 Keppell Mews, Rockingham. The accused, his defacto partner and the victim live[d] … in a converted semi self sufficient games room at the rear of the premises. The deceased slept in a port‑a‑cot within close proximity to the accused's bed.
On Thursday 7 April 2016, the accused and his family were present in the living space ..... During the evening the accused tended to the [deceased] feeding, clothing and placing him to bed. The accused and his defacto wife remained awake until around midnight that evening when they decided to go to sleep themselves. The deceased was checked and was sleeping soundly.
Between the hours of 12.01 am and 10.00 am the following morning, 8 April 2016, the deceased woke in his port‑a‑cot for a normal night time feed.
The accused woke with the room in complete darkness, he felt his way through the darkness to lift the deceased's port‑a‑cot and began making a semi‑prepared bottle of formula.
The accused reached into the port‑a‑cot and took hold of the deceased's left forearm and proceeded to lift him out over the side rails of the port‑a‑cot.
The force in which the accused lifted the deceased from the port‑a‑cot resulted in the deceased's left forearm bone breaking and separating, plus (he) received a further two fractures to the wrist joint and elbow joint of that same arm. The accused attempted to feed the deceased however the deceased was crying, in pain and refused.
The accused attempted to settle and soothe the deceased in his arms for 10‑15 minutes with no success.
The accused laid the deceased in his port‑a‑cot and placed a bunched portion of blanket into the deceased's mouth in an attempt to settle his crying and provide something for the deceased to bite down on.
The accused became emotional as he had a bad feeling and sat at the end of his bed for a period of about 20 minutes whilst he waited for the deceased to settle. The deceased suffering his massive arm injuries did not settle. After approximately 20 minutes the deceased stopped crying. The accused approached the deceased and lent over the port‑a‑cot where he saw the blanket placed into the deceased's mouth was now covering the deceased's head. The accused removed the blanket from the deceased's head and mouth, re‑positioning it and leaving the deceased where he lay. The accused climbed into his bed, sought his ipod and listened to loud music prior to falling asleep.
At about 10.00 am on Friday 8 April 2016, the accused and defacto wife woke as normal. The accused approached the deceased's port‑a‑cot and picked him up. The deceased was cold to touch and appeared lifeless.
The accused and other people living in the accommodation have eventually flagged down a passing by motorist and conveyed the deceased to the Rockingham Hospital where he was certified life extinct.
On Thursday 21 April 2016, the accused was arrested and interviewed in relation to this matter, the accused was released without charge.
On Friday 22 April 2016, the accused voluntarily participated in an electronic record of interview making admissions in relation to this offence.
The evidence to be relied on by the State at trial is the evidence of 20 lay witnesses and the expert evidence of Dr Cadden, forensic pathologist and Dr Winterton, paediatrician. The evidence of the deceased's and the accused's actions is not difficult to understand, although it may be distressing for the accused to hear. The accused has ample time whilst he is on bail prior to trial to familiarise himself with the proposed evidence. The expert evidence has a degree of complexity to it and it may also be distressing for the accused to hear and/or read the evidence. However, because it has been prepared and disclosed well before trial, there is time prior to trial for the accused to read it slowly in an environment that is not stressful to him and for it to be explained to him if that is necessary.

The legal principles

An accused is presumed to be mentally fit to stand trial until the contrary is found after an inquiry is held under the Act.[2] The question of whether the accused is not mentally to stand trial is to be decided by a judge alone.[3] An accused is not mentally fit to stand trial for an offence if because of mental impairment, he 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.[4]
[2] The Act s 10(1).
[3] The Act s 12(1).
[4] The Act s 9.
'Mental impairment' is defined to mean intellectual disability, mental illness, brain damage or senility.[5] 'A mental illness' is defined to mean:[6]
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.
[5] The Act s 8.
[6] The Act s 8.
As is obvious from reading the statutory provisions, the mere fact that a person suffers from a mental impairment does not mean that they are not mentally fit to stand trial. In order to be not mentally fit to stand trial the mental impairment must deprive the accused of at least one of the relevant capacities identified in the Act s 9.
This requirement reflects the following comments in Eastman v The Queen:[7]
[7] Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 [24] ‑ [27] (Gleeson CJ).
Unfortunately, it is not unusual for the criminal justice system to have to deal with people with mental disorders; sometimes severe disorders. The existence of the disorder does not, of itself, prevent them from being brought to trial. It certainly does not mean that they must be allowed to be at liberty. It is not to be overlooked, as Deane and Dawson JJ pointed out in Kesavarajah v The Queen, that the usual consequence of a finding that a person is unfit to plead is indefinite incarceration without trial. It is ordinarily in the interests of an accused person to be brought to trial, rather than to suffer such incarceration.
In the case of Berry Geoffrey Lane LJ, criticising a direction to a jury empanelled to determine an issue of fitness to plead, said:
'It may very well be that the jury may come to the conclusion that a defendant is highly abnormal, but a high degree of abnormality does not mean that the man is incapable of following a trial or giving evidence or instructing counsel and so on.'
The Ontario Court of Appeal, in R v Taylor, recorded the following propositions, agreed by counsel, as representing the state of authority in that province:
(a)The fact that an accused person suffers from a delusion does not, of itself, render him or her unfit to stand trial, even if that delusion relates to the subject-matter of the trial.
(b)The fact that a person suffers from a mental disorder which may cause him or her to conduct a defence in a manner which the court considers to be contrary to his or her best interests does not, of itself, lead to the conclusion that the person is unfit to stand trial.
(c)The fact that an accused person's mental disorder may produce behaviour which will disrupt the orderly flow of a trial does not render that person unfit to stand trial.
(d)The fact that a person's mental disorder prevents him or her from having an amicable, trusting relationship with counsel does not mean that the person is unfit to stand trial.
In the present case, the ultimate test to be applied is the statutory test set out earlier. However, each of the above propositions is sound, and they are consistent with the statutory test.
In Ngatayi v R[8] the High Court considered the meaning of what was then the Criminal Code (WA) s 631 which provided that if it appeared to be uncertain, 'for any reason', whether the accused was 'capable of understanding the proceedings at the trial, so as to be able to make a proper defence', a jury was to be sworn to find whether he was so capable or no. The plurality said:
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 Reg. v. 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 of 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 such as Reg. v. Robertson and Reg. v. Berry, and accords with common sense. …
The section does not mean that an accused can only be tried if he is capable, unaided, of understanding the proceedings so as to be able to make a proper defence. This is self‑evident when the incapacity to understand the proceedings is due to an inability to understand the language in which the proceedings are conducted. In such a case, if an interpreter is available the incapacity is removed. Similarly, in deciding whether an accused is capable of understanding the proceedings so as to be able to make a proper defence it is relevant that he is defended by counsel. If the accused is able to understand the evidence, and to instruct his counsel as to the facts of the case, no unfairness or injustice will generally be occasioned by the fact that the accused does not know, and cannot understand, the law. With the assistance of counsel he will usually be able to make a proper defence. That of course is the test which s 631 provides: is the accused capable of understanding the proceedings at the trial, so as to be able to make a proper defence? The section does not require that an accused, before he can be tried, must be capable of understanding the law which governs his case, if that lack of capacity does not render him unable to make a proper defence.[9]
[8] Ngatayi v R [1980] HCA 18; (1980) 147 CLR 1.
[9] Ngatayi v R, (8) - (9) (Gibbs, Mason & Wilson JJ).
The above comments are consistent with the criteria in the Act s 9 and particularly with s 9(g).

The accused's background

The accused is a 21‑year‑old male. From an early age the accused exhibited psychological and psychiatric problems.[10] The accused required resuscitation at birth and was in psychological distress as a newborn. His 18-year-old mother reportedly neglected him and abused substances including alcohol. The accused was cared for by his maternal grandmother from the age of 12 months. His biological father was imprisoned shortly thereafter.
[10] The following summary of these problems is taken from the report of Dr Hall.
At the age of six the accused had fine motor and sensory problems. He was reported to make unusual noises and exhibit repetitive movements, although details of these are lacking.
At the age of seven the accused was diagnosed with attention deficit hyperactivity disorder (ADHD) and treated with stimulant medication which he continued to take throughout his childhood and adolescence. The accused told Dr Hall that he commenced fire‑setting at the age of eight. He said that more recently he had tended to light fires in ashtrays. He said that he liked fire and that it made him feel calm. He acknowledged that he got 'sexual urges' when he lit a fire. He denied any past history of cruelty to animals or other antisocial conduct as a juvenile.
At the age of 9 the accused had poor social skills. He exhibited odd behaviour such as sleeping with heavy covers or objects on the bed and loading his school bag so that it was heavy because he found the sensation comforting.
When the accused was 14 years old his six week old brother died of sudden infant death syndrome (SIDS). It was around that time that the accused began using cannabis and self‑harming. The pain from self‑harming made him feel better and helped to stop him feeling anxious.
The accused's grandmother reports that around the same age the accused had the first of a number of episodes which she and the accused describe as 'seizures'.[11] The accused's grandmother describes the first seizure as occurring whilst the accused was at the hospital following the death of his younger brother. When she tried to comfort the accused by touching him, he went stiff before convulsing for a minute or two. A subsequent CT scan of his brain revealed no abnormality.
[11] For consistency I will refer to these episodes as 'seizures', even though this may not be the correct medical term.
The accused told Dr Hall that around the age of 15 he developed an interest in spiritualism, the paranormal and the occult. He also reported a period of obsessively collecting store receipts.
During his adolescence the accused was an army cadet. He described himself to Dr Hall as 'obsessed' and a 'walking encyclopaedia' on the subject. He developed a keen interest in guns and artillery. He also became deeply interested in video games and anime.
During his adolescence the accused presented to hospital emergency departments on a number of occasions. These were in relation to depressed mood and threatened or actual self‑harm. Sometimes these admissions were preceded by a brief period of acute agitation and punching himself in the head. Later, the accused would often claim to have no memory of such behaviour.
At the age of 17 the accused was taken to hospital by his grandmother after reporting feeling very depressed. He mentioned to health professionals that he had seen images in the garden and heard muffled noises. The question was raised as to whether he was prodromal for the development of schizophrenia. The accused was followed up by the Child and Adolescent Mental Health Service. He was diagnosed with a moderate depressive episode and a 'disorder of motor function'. He was prescribed antidepressant medication but discontinued taking it shortly thereafter.
In July 2015 the accused presented to hospital following a seizure. Whilst at home he had reportedly lost consciousness and convulsed. A CT scan and MRI of his brain and an EEG were all found to be normal. It was considered that the episode had a psychological origin given that it appeared to be triggered by emotional distress.
In around 2015 the accused was followed up by Headspace Youth Mental Health Service and he saw a psychologist on a regular basis.
The accused completed year 12 (non‑TEE) after which he attended TAFE where he commenced studying information technology and cooking.
The accused's relationship with the mother of the deceased commenced when he was 18 years old. They had been together for eight months when she fell pregnant. The accused subsequently ceased his studies. Dr Hall said that reports from other sources suggest that the accused had enjoyed being a parent and that he had made a concerted effort, within his capability, to meet his parental responsibilities.
The accused's grandmother reported to Dr Hall that the accused's last seizure had occurred around one year prior to Dr Hall's assessment in March 2018. It was precipitated by heightened emotional arousal due to the accused being told that he should not have contact with his girlfriend after the death of the deceased. The accused's grandmother described that when his girlfriend had come to her home and been turned away, the accused had 'shut down' for 15 ‑ 20 minutes during which time he repeatedly punched himself in the face. She tried to intervene and at the moment she touched him, the accused became 'immediately stiff and fell over like a piece of concrete'. He convulsed for a minute or two before he opened his eyes and started to cry. He said that he had a headache and subsequently slept for a number of hours.

On 27 April 2016 following the death of the deceased, the accused was referred to the Frankland Centre on 27 April 2016 under a hospital order.[12] Psychological testing indicated that the accused was prone to over‑reporting symptoms. An EEG was repeated and again found to be normal. A diagnosis of adjustment disorder in addition to schizotypal personality disorder with borderline personality traits was made. According to the discharge summary, the accused exhibited a dramatic deterioration in his behaviour the night before his return to court with dissociation and deliberate self‑harm requiring intramuscular sedation.
[12] The Act s 5.
The accused was subsequently remanded in custody in prison. He was initially agitated and he underwent further psychiatric assessment by Dr Hall, who is a highly experienced forensic psychiatrist. Dr Hall considered that the accused posed a complex diagnostic issue. In summary, he determined that the accused's symptoms were consistent with autism spectrum disorder (ASD) and that his 'magical thinking' and propensity for fantasy may have reflected either a style of psychological coping, immaturity and/or attenuated psychotic symptoms given that he had a family history of schizophrenia.
Dr Hall also noted that the accused's emotional dysregulation, dissociative experiences and self‑harm behaviour indicated the presence of borderline personality traits stemming from problems with early attachment due to childhood neglect and trauma. The accused was commenced on a low dose of anticonvulsant mood stabilising medication.[13]
[13] Sodium valproate.

Whether the accused suffers from a mental impairment

It is not in dispute that the accused suffers from mental impairments which affect his mental fitness to stand trial. To illustrate the correctness of that position I will summarise the evidence of Dr Hall and Dr Vidovich. When I determine whether his mental impairments deprive him of any of the relevant understandings or capacities, I will refer to the evidence of all four witnesses.
During the assessment in March 2018, the accused told Dr Hall that he felt anxious about his current situation. He said that he continued to engage in deliberate self‑harm and that he had burned himself with cigarettes the previous week because of the stress of an upcoming court appearance. He also continued to have suicidal ideation. However he said he would not be able to commit suicide because it would adversely affect his family.
The accused confirmed to Dr Hall that he continued to engage in an usual behaviour such as pacing around the room in circles and that he likes having weights on the bed when he goes to sleep.
The accused told Dr Hall that he heard a voice that was critical of him. The voice was of an older deceased Irish person called 'Alex O'Neill' (Alex). The accused said that Alex had told him that he was 'stuck' to him. He said that he and Alex were 'doing research to figure out why he died'. He said that Alex used to be a cook and had also worked for British intelligence.
The accused also described seeing between one and three 'orbs of white light' around him which would occur on a roughly monthly basis. He said that one orb was a little girl and that he had heard her speaking. He said he had a 'gut feeling' that another orb might be his cousin. He said that another orb felt like it was the deceased. When he was asked by Dr Hall for his opinion as to why he had such experiences, the accused said he was 'just lucky'. The accused said he would occasionally see 'a woman in a wedding dress' watching him from the back door of his home but could offer no explanation for it.
Dr Hall noted that the accused presented as a neatly groomed and dressed bespectacled young man. His greeting had a non‑reciprocal quality in that he returned an awkwardly passive and limp handshake. Recent cigarette burns were visible on his left forearm. Eye contact was characterised by a consistent and peculiar offset gaze. It was only possible to establish a superficial rapport. His mood was neither elevated nor depressed. His expression of emotion was blunted yet fatuous, despite his claim of feeling quite anxious. There was evidence of psychomotor slowing with response latency. However, these signs improved considerably as the interview with Dr Hall progressed.
Dr Hall found no evidence that the accused had a formal thought disorder. However the accused exhibited 'magical thinking', an interest in the paranormal and beliefs regarding close personal involvement with a fictional person, Alex. He also described a range of perceptual disturbances in both auditory and visual modalities. His beliefs and description of his experiences had the quality of fantasy rather than delusions. It was not possible for Dr Hall to elicit from the accused any delusional theory for the presence of Alex or other similar paranormal elements in his life.
In relation to the accused's cognition, Dr Hall noted that the accused reflexively responded 'I don't know' to most enquiries. However, when questions were broken down into smaller components Dr Hall concluded that it was clear that the accused did know the answers. This response suggested to Dr Hall that there was an initial lack of mental effort related to the anxiety of the interview situation and/or direct interpersonal exchange.
On more specific testing Dr Hall observed impairments in the accused's working memory and concentration, abstract reasoning, verbal category fluency (idea generation) and response inhibition. These impairments indicated impaired executive functioning and were consistent with the impression that Dr Hall had gained from testing undertaken by Dr Vidovich, which I will describe later.
Dr Hall remains of the view that the accused has multiple diagnoses. In Dr Hall's view his presentation is most consistent with ASD being the core syndrome. Dr Hall said that the accused presents with persistent difficulties in social communication and social interaction across a variety of contexts, manifested by deficits in social and emotional reciprocity and deficits in non‑verbal communication and behaviours used for social interaction. He also exhibits deficiencies in developing, maintaining and understanding relationships. He has also exhibited a restricted, repetitive pattern of behaviours, interests and activities as well as hyper‑reactivity to sensory inputs and an interest in particular sensory aspects of the environment. In Dr Hall's opinion, this latter issue is manifested in his fire‑setting behaviour. These impairments have been present since the accused's childhood and have produced significant dysfunction.
In addition, the accused suffered childhood neglect and trauma and has problems with emotional attachment as a result. He has coped with anxiety using maladaptive means including deliberate self‑harm. He has a low frustration tolerance, frequent suicidal ideation, dissociative episodes under stress and an inability to manage negative affect. These symptoms are consistent with the presence of borderline personality traits.
The accused's social anxiety and his unconventional but non‑delusional beliefs and described experiences involving spiritualism and the paranormal suggest to Dr Hall the presence of schizotypal personality traits.
In relation to the seizures, Dr Hall is of the opinion that the invariable presence of an emotional trigger suggests that they represent psychogenic non‑epileptic seizures. Psychogenic non‑epileptic seizures are a psychiatric 'conversion' disorder under the broader category of somatic symptom disorder and essentially reflect the 'conversion' of psychological distress to neurological impairment in someone with profoundly limited ability to tolerate and consciously process negative feelings.
Dr Hall said that the accused has 'some genetic loading' for schizophrenia. He does not exclude the possibility that the accused's complex and polymorphous symptoms represent an evolving schizophrenic illness. Should that be the case, a more classical clinical picture for schizophrenia would become apparent only in the fullness of time.
Thus, Dr Hall is of the opinion that the accused suffers from a number of mental impairments. Predominantly these are ASD, borderline personality traits and schizotypal personality traits. He also suffers from anxiety and symptoms of depression. It is unnecessary for me to attempt to determine whether they are intellectual disabilities, mental illnesses or brain damage. I accept Dr Hall's opinion as to the presence of mental impairment.
Dr Vidovich is a clinical neuropsychologist. She holds a Bachelor of Science with Honours in psychology and a Masters degree in clinical neuropsychology. She completed a PHD by researching the role of cognitive rehabilitation for older adults with mild cognitive impairment. She is both qualified and highly experienced in neuropsychology.
In March 2017 Dr Vidovich saw the accused on three occasions for the purpose of performing a neuropsychological assessment and giving an opinion to his lawyer for the purposes of this prosecution. Her first report is dated 24 March 2017. She has not seen the accused since March 2017.
In addition to the background material I have already noted from Dr Hall's evidence, Dr Vidovich noted that the accused's school reports describe 'some issues with inconsistency, concentration, confidence and motivation'. In his two senior years, the accused's strongest performances were in mathematics (As and Bs) with lower grades (Cs and Ds) in other subjects such as English, science, building and construction, woodwork and outdoor education.
Dr Vidovich administered the Wechsler Adult Intelligence Scale.[14] The accused produced a Full Scale Intelligence Quotient (FSIQ) that fell within the Average range. However, there were clinically significant discrepancies across his index scores, rendering this score an invalid reflection of his intellectual abilities. He demonstrated Average results upon his Verbal Comprehension Index (VCI) and Perceptual Reasoning Index (PRI). He produced Low Average performances upon the Working Memory Index (WMI) and Processing Speed Index (PSI).
[14] Fourth Edition (WAIS‑IV).
During testing the accused had instances of inattentiveness and difficulty with sustaining focused attention. His Low Average WMI was the result of a borderline result upon the subtest of Digit Span, with poor auditory immediate attention and working memory abilities. The accused produced a stronger low‑end Average score for his capacity to perform mental calculations. Visual immediate attention and working memory abilities were Average.
The accused's Low Average PSI result was the consequence of consistently Low Average subtest scores. His performances became significantly slowed as the attentional processing demands of tasks increased. He preferred to persevere with tasks, which at times resulted in lengthy completion times.
The accused did not experience difficulty comprehending task instructions. He generally required prompting to elaborate on his answers and to provide further details. He often commented that he knew the answer though he was unable to 'explain it'.
The accused's Average VCI score comprised Average abstract verbal reasoning abilities, capacity to provide word definitions of varying complexity and acquired general knowledge. Receptive vocabulary was also well within expectations. Single word reading and spelling abilities were within Average to High Average limits. He did not know the letters of the alphabet and was uncertain when reciting the months of the year. Verbal fluency was markedly impaired.
The accused's Average PRI result reflected Average to High Average abilities to process, manipulate and problem solve with visual material. Written mathematical abilities impressed Dr Vidovich as being appropriate for his age.
The accused was oriented to the month and year but not the date. He had limited awareness of contemporary news events. Clear discrepancies were evident in his performances on verbal and visual measures. On the other hand, he had a High Average immediate and delayed recall performance for a series of visual figures.
Dr Vidovich noted that whilst the accused was pleasant, he was particularly quiet and appeared uncomfortable with all social interactions. He lacked spontaneity and his range of affect was restricted. He seemed to have minimal emotional insight into elements of his behaviour. There were no impulsive, disinhibited or perseverative features. He was particular in his attempts to complete some tasks.
When the accused was shown a series of facial expressions, he scored in the Low Average range for his ability to accurately recognise emotions. His results for questions for ASD were not above clinical cut‑offs, although they were elevated.
The accused endorsed having experienced severe symptoms of depression and anxiety and a normal range of stress around the time Dr Vidovich saw him. His responses to a questionnaire designed to assess the presence of psychopathology raised a concern regarding distortion of the clinical picture. There were elevations in some areas which were likely to over‑represent the extent of his dysfunction. However, the accused's profile remained valid with notable levels of distress and dysfunction in a number of aspects of his functioning.
The accused endorsed experiencing unusual perceptual and/or sensory events and ideas, together with confused thought processes and problematic concentration. Significant anxiety, depression and suicidal ideation were also noted. His personality style was characterised by rigid behaviours, a tendency towards rumination and trouble coping with changes in routine. According to his self‑report, his interpersonal style is characterised as being very uncomfortable and passive in social situations with a tendency to take a submissive and withdrawn stance when interacting with others.
Dr Vidovich noted at the time she tested the accused that he was medicated with a mood stabiliser, an antipsychotic and an antidepressant. The accused said that Alex had not been present and he had not experienced a seizure for some time.
Dr Vidovich concluded that the accused had Low Average to Average intellectual abilities. The observed deficiencies across the accused's attentional, processing and executive domains were consistent with ADHD. The accused consistently demonstrated reduced immediate attention (particularly for auditory material) and had trouble sustaining his focus. Slowed information processing was evident, with performances becoming particularly compromised as the complexity of the task requirements increased. There was evident impairment in his mental flexibility, dual processing and selective attention under timed conditions. Memory performances were undermined by the accused's attentional deficiencies. He demonstrated his greatest difficulty in the uptake of new verbal information.
In addition to the higher‑level attentional deficits, executive impairments were also evident on tasks requiring verbal generativity and with respect to the planning and organisation of material. He performed well on measures of his language skills. The accused struggled to efficiently communicate his thoughts and ideas. There was no indication of difficulty with the processing, integration and construction of visual and perceptual material. Dr Vidovich thought that the level of functional impairment reported by his grandmother was unexpected in the context of the accused's 'mostly intact cognitive abilities'.
Dr Vidovich said that the accused's early childhood behaviours and persistent issues with social interaction raised strong suspicion of high‑functioning ASD. She noted that there was also an overlap with the presence of social (pragmatic) communication disorder. She noted the recent diagnosis of schizotypal personality disorder and the commonality between features of that disorder and ASD. She also thought that there might be issues of attachment, childhood neglect and trauma which may be influencing the accused's presentation. His family history also suggested that the accused was genetically vulnerable to certain neuropsychiatric disorders. In evidence, Dr Vidovich said that she also suspected that the accused had oral dyspraxia, a condition where there is difficulty in co‑ordinating the movements of the mouth which produce speech. This could contribute to the accused's lack of speech.
Dr Vidovich said that the accused did not meet the criteria for foetal alcohol spectrum disorder.
Dr Vidovich said the reduction in the accused's attentional, processing and executive abilities mean that he finds it difficult to maintain focus, utilise and reflect on information and organise his thoughts and behaviours. The accused's communication deficits mean that he is more likely to misunderstand what is not explicitly stated and to have trouble with the interpretation what is said without the provision of context. His difficulty in interpreting non‑verbal cues may make it harder for him to appreciate the intentions of others. He presents with challenges to communicating and understanding his own emotions and those of others. Behaviourally he is likely to be avoidant of situations that require interactions and confrontations.
In relation to his ability to answer questions in a police interview and potentially when giving evidence in his trial, Dr Vidovich noted that he may be more susceptible to misinterpreting or failing to closely attend to questions. His difficulty managing information and sustaining attention may result in him being more easily led due to having trouble keeping track of questions and subjects. He may require additional time to formulate his responses as a result of inefficient organisation and difficulty articulating his thoughts. He may also have increased stress due to persistent enquiry. His difficulties with eye contact and emotional expression may be misinterpreted by others as him not telling the truth. Repeated questioning may further his anxiety and increase that impression. The accused's preference to avoid interaction and communication, his trouble regulating his emotions and his maladaptive strategies for coping with stress may result in greater compliance to questioning. That is, he may be more prone to respond in a manner so as to try to minimise ongoing conversation, interaction, potential conflict and negative evaluation by others.
The reliability of his answers may be influenced by his level of discomfort, emotional distress and the processing demands necessary to maintain the thread of the conversation. I accept Dr Vidovich's opinions as summarised above.
I will consider the accused's capacity to meet all of the criteria in the Act s 9. I will deal only briefly with the criteria that the accused acknowledges he meets.

Whether the accused is unable to understand the nature of the charge (s 9(a))

Dr Hall, Ms Marley, Dr McCue and Dr Vidovich are in agreement that the accused understands the nature of the charge. He was able to explain to the experts the nature of the charge in a rudimentary fashion. He understands that it is an allegation that he killed the deceased without any excuse for doing so.

Whether the accused is unable to understand the requirement to plead to the charge or the effect of a plea (s 9(b))

Dr Hall is of the opinion that the accused understands that he must plead to the charge and the effect of a plea. Specifically, the accused understands that if he were to plead guilty he would be acknowledging commission of the alleged offence and would be sentenced accordingly. He understands that to plead not guilty means that he is denying the alleged offence as stated by the police in the prosecution and that a trial would ensue.
Ms Marley, Dr McCue and Dr Vidovich agree that the accused has these capacities.

Whether the accused is able to understand the purpose of the trial (s 9(c))

The four experts agree that the accused understands the purpose of a trial. Dr Hall said that the accused understands that a trial is a process of enquiry as to his guilt based on the testing of evidence. The accused could identify and describe the function of the parties in a trial including the prosecution, his own lawyer and a judge and jury.

Whether the accused is unable to understand or exercise the right to challenge a juror (s 9(d))

The four experts agree that the accused understands or is able to understand his right to challenge a juror. Dr McCue was least confident in the accused's present understanding but he believes that with exposure to relevant information, the accused's understanding will develop. Dr Vidovich testified that the accused was not so cognitively impaired that he cannot comprehend or remember information.
The experts made had varying comments about the accused's ability to exercise the right to challenge a juror.
Ms Marley is a clinical psychologist with over 30 years' experience in forensic psychology. Ms Marley used a hypothetical criminal case to assess the accused. She gave the accused an opportunity to familiarise himself with the case and then asked him questions about it.
Ms Marley concluded that the accused would find it very difficult to personally challenge a juror, due to his anxiety and other impairments. If he was given the opportunity to meet with his lawyer during jury empanelment, it may allow him to exercise his right to challenge jurors. Ms Marley said that the accused demonstrated an understanding of the need for an impartial jury.
Dr Hall said that the accused knew that a situation in which he thought that a juror would not give him a fair trial was a negative situation which needed to be addressed. Dr Hall enquired as to what the accused would do in such a situation. The accused said 'have a panic attack'. On further enquiry, he said he would tell his lawyer in the hope that the juror would be replaced by someone else. It is Dr Hall's opinion that the accused would be able to exercise his right to challenge if he was properly guided through jury selection by his lawyer.
Dr McCue, who saw the accused for the purpose of his assessment in mid‑February 2018, said that the accused's responses regarding the role of the jury and his right to challenge them conveyed a very limited understanding. The accused stated with regard to the role of a jury that 'they're a bunch of people that decide whether you are guilty or not'. He stated that 'anybody' is able to be selected to be a juror but did not know what this selection process entailed. When asked questions regarding the selection of jurors, what a juror is required to do during a trial, the type of person that might make a good juror and how a jury comes to their decision, he stated 'I don't know'. When asked directly what might happen if someone was unsuitable to be a juror, he stated 'I guess they'd be removed'.
Dr McCue concluded that the accused demonstrated 'paucity in his understanding that a jury is empanelled and that part of that empanelling process affords him the right to challenge a juror'. At the time of Dr McCue's assessment, the accused did not appear to understand his right to challenge jurors. Further, the accused's anxiety, depressed mood and sensitivity to stress appeared to result in him presenting as a meek and unassertive individual. Those characteristics could impact on his ability to exercise that right.
Dr McCue said that it was possible that the accused could be educated regarding his right to challenge jurors by his lawyers, using simple plain English language and repeated exposure to the information. However, it was likely that he would need to rely heavily on the advice of his lawyer, if required to apply his knowledge and exercise his right in court. If the accused was required to make a decision and instruct his lawyer in a courtroom context, as opposed to him delegating his right to challenge jurors to his lawyer completely, he was unlikely to be able to do so. However, in cross‑examination, Dr McCue said that if the accused sat with his counsel during jury selection and was permitted to pass his counsel notes it would assist him to exercise his right to challenge jurors.
Dr Vidovich said that the accused would be unlikely to exercise his right to challenge jurors. She said that her clinical opinion was that 'he wouldn't be competent in asserting himself'.[15] Dr Vidovich was then asked whether a practical solution to the issue was to provide the accused with time with his counsel to discuss whether or not he would like certain jurors challenged. Dr Vidovich maintained that because it was 'challenging' to get the accused to engage in discussion about something unless he was interested in it, she believed that even in that scenario the accused would be reliant on counsel to probe him and extract information from him, rather than him volunteering the information. She said that it would be a 'very long, arduous and potentially unreliable process'. She used the phrase 'potentially unreliable' in the sense that if the questioning was to continue the accused's default position would be to say, 'I don't know. I leave it to you'.
[15] ts 91.
Dr Vidovich said in cross‑examination that she would defer to the more specific comments about fitness to stand trial made in the more extensive reports prepared after the most recent assessments of the accused. She was referring to comments made by Dr Hall, Dr McCue and Ms Marley.
I am not satisfied on the balance of probabilities that the accused is unable to understand the right to challenge jurors. On the other hand, he may presently not have a complete understanding of the mechanism or process for challenging jurors. That is something which a lot of people, uninformed and inexperienced in the criminal justice process, would not have. Whilst because of the accused's mental impairment it may take longer to instruct him in the mechanism and process for challenging jurors, I am not satisfied that he is unable to be so instructed by his lawyer. I am satisfied that it is reasonable to expect that prior to trial his lawyer will do that.
All of the experts agree that the accused would have difficulty in exercising the right to challenge jurors in the courtroom environment. This is primarily due to his meek and unassertive personality and because of the likelihood of him being stressed and anxious during the course of the trial. I am not satisfied on the balance of probabilities that this amounts to him being unable to exercise his right to challenge jurors. First, there is the option for him to delegate his right of challenge to his lawyer. Secondly, his reluctance to speak up and challenge a juror in open court can be accommodated by him sitting with his lawyer during the empanelment process and communicating to her that he wishes to challenge a juror.[16] The lawyer can communicate the challenge to the court. Alternatively, after the jury has been selected but before the jurors are sworn, it is possible for the accused's lawyer to seek an adjournment to obtain instructions from the accused in private about any juror he would like to challenge. I anticipate that any request for such an adjournment would be granted. I do not accept that if the accused should ask his counsel to challenge a juror on his behalf that this would amount to the accused abdicating his right to challenge. Rather, it would be a practical way for him to challenge a juror without having to draw attention to himself.
[16] The communication may be a gesture, words or in writing.
The accused's counsel submitted that the accused's slow processing speed may result in him only appreciating that he knows a juror after the jury has been empanelled. This may be accommodated in a number of ways. For example the jury empanelment may be slowed so that the next juror is balloted only after the accused indicates to his lawyer that he is ready to proceed. Alternatively, a greater number of jurors than normal may be empanelled to take account of the fact that there is a greater risk than usual of a juror being found unsuitable after being sworn.

Whether unable to follow the course of the trial (s 9(e))

In Dr Hall's opinion, the accused exhibits mild impairment in executive functions including short‑term memory and the associated inability to hold and manipulate information in his mind for significant periods of time. However, there is little evidence of a serious impediment to the accused following the course of a trial, particularly if he was able to periodically confer with his lawyer such as at the end of a session or a day. Cognitively he has the capacity to follow the course of his trial.
Dr McCue said that it appeared likely that the accused will experience difficulty following the course of the trial and understanding the full proceedings. His symptoms of depression and anxiety would impact on his ability to concentrate. When in unfamiliar situations, he also has demonstrated a propensity to experience panic attacks and has also suffered seizures during periods of heightened stress. The accused told Dr McCue that he believes that a trial would be 'extremely stressful'.
Dr McCue found that the accused had a poor recollection of his court experiences to date. He also reported experiencing high levels of anxiety when in transit to court and in the courtroom. He recalled that when he was in the courtroom that he had started shaking and spacing out. He described his reaction as being similar to his previous seizures. He said it was a weaker form of what happened when he used to blackout. I did not notice any such behaviour during the hearing.
In Dr McCue's opinion, the accused's psychological reaction to stressful situations such as court and the neuropsychological testing also suggested that his intellectual deficits could impact on his ability to follow the course of a trial.
Dr McCue concluded that the accused had difficulty comprehending verbal information, difficulty attending to tasks for protracted periods of time and sustaining his concentration, as well as difficulty processing new information. He required a long period of time and repeated exposure to retain new information.
Following his previous court hearings, his lawyer had explained to the accused what occurred and the result of the hearings. He described this information as helpful. Despite this, when discussing his last court hearing with Dr McCue, the accused was unable to recall what his lawyer described to him following the hearing.
Dr McCue concluded that he was 'not confident' that the accused would be able to follow the course of a trial. It is likely that the accused will require considerable assistance from his lawyer and possibly the court to enable him to follow his trial and that it is unlikely that the accused could follow the course of a trial as it unfolds, as opposed to having his lawyer explain things to him during breaks or providing summaries at the end of the day.
Dr McCue said that whilst the accused in his view did not currently meet the requirement to follow the course of the trial, there were strategies which could be employed to render him fit to plead in respect of this criterion. Relevantly, Dr McCue suggested the following strategies:
1.During the course of the trial the accused would benefit from the court granting permission for regular recesses. These recesses would serve two primary functions. First, they would provide the accused with a period of time for his anxiety to subside before resuming. Secondly, the recesses would provide an opportunity for the accused's legal counsel to explain evidence that had been presented in the preceding session and the meaning of that evidence in straightforward and plain English.
2.In the context of the accused's intellectual deficits, he would likely benefit from the main points of the trial being presented to him at the conclusion of each day, with written notes to be provided to him to take home. This would allow him time, outside of the heightened state of anxiety, to consider the content of the trial and return with any questions for his legal counsel to further assist his understanding of the trial.
3.The accused's treating psychologist could work with him prior to the trial to provide and practice specific cognitive and behavioural strategies to assist him to manage or reduce his experience of anxiety during the trial.
Dr Vidovich said that the accused's attentional and processing deficits would restrict his ability to follow the course of the trial and additional provision for breaks and reiteration would be important. The accused's fitness in this regard may fluctuate during periods of acute stress, though with breaks and the initiation of any treatment, he should be able to continue.
Dr Vidovich opined that the accused was fit to stand trial at the time of the writing of her report. His attentional and processing deficits would restrict his ability to consistently follow the course of the trial and additional provisions for breaks and reiteration would be important. He demonstrated the cognitive capacity to understand the evidence presented.
Ms Marley was of a similar view. She considers that the accused's anxiety will interfere with his ability to take note of and retain information. She also suggests regular breaks during the course of the trial to enable the accused to calm down and receive advice on the course of the trial from counsel. She acknowledges that the success of this process will depend on the skill of counsel and the nature of the relationship between the accused and his counsel.
There was a considerable amount of evidence given about the possibility of the accused suffering a seizure during the course of the trial or the possibility of him coming close to having a seizure during the course of the trial, without any other person being aware of his condition. In my opinion, these prospects are speculative. The accused has not suffered a seizure for a considerable period of time. When he has suffered a seizure it has been obvious to another person. Whilst it is possible that he will come close to suffering a seizure and suffer from symptoms which are not noticed by another person, there is a lack of evidence to persuade me that the accused would be unable to advise his counsel or a carer of the fact that he had suffered such symptoms. If that occurred the accused's fitness to stand trial could be reassessed at that time.
I am not satisfied on the balance of probabilities that the accused is unable to follow the course of the trial. I accept that the accused may have some difficulties following the course of the trial, depending on the extent to which the evidence differs from that in the prosecution brief and depending on the pace of the trial and the accused's level of anxiety during it. These matters are currently unknown. For example, it is not known whether repeated exposure to the court processes will decrease his anxiety or increase his anxiety.
However, as Dr McCue has noted there are precautions and strategies that can be put into place in order to ensure that nothing occurs during the course of the trial which will render the accused unable to follow the course of it. These include ensuring that the accused has access to the prosecution brief and directing the prosecution to provide its written opening address and list of witnesses to the accused well before the trial commences. If the accused chooses not to take the opportunity to become familiar with the material, then that is a matter for him and not one which would render him relevantly unable to understand the course of the trial because of mental impairment. There is no evidence that the accused's ability to read or comprehend written material is substantially impaired.
Secondly, the accused can be provided with frequent breaks in the trial and the pace of the trial can be slowed so there is more time for the accused to understand the evidence and opportunities for his lawyer to speak to him and explain any new evidence to him. He may have someone sit with him during the course of the trial to explain what is occurring.
Thirdly, those who care for the accused and his lawyer may encourage him to seek expert psychological assistance to equip him with cognitive and behavioural strategies which will assist him to manage or reduce his experience of anxiety during the trial.
Fourthly, it seems that the accused's current medication regime has been of significant benefit in reducing the accused's seizures. He should be encouraged to seek medical and/or psychiatric assistance prior to the trial to ensure that his medication regime is at an optimal level for the trial. During the course of the trial if it appears that it is not, the accused can be given the opportunity to obtain further medical and/or psychiatric treatment to correct any problem.

Whether the accused is unable to understand the substantial effect of evidence presented by the prosecution in the trial (s 9(f))

None of the evidence presented by the expert witnesses satisfies me that the accused would have a cognitive or intellectual inability to understand the substantial effect of evidence presented by the prosecution in the trial. The evidence to be presented by the prosecution is contained in the prosecution brief. The accused will have adequate time prior to the trial to familiarise himself with and to understand the effect of that evidence. He has the benefit of the advice of a highly experienced defence counsel.
Additionally, he was able to explain to Dr Hall that he understood that the prosecution had 'no evidence besides my confession'. He understood that there was going to be a hearing to determine the admissibility of that 'confession'. The accused also referred to the onus on the prosecution to produce evidence that directly linked him to the injuries that were found to have been sustained by the victim.
Dr McCue noted that the accused appeared to understand that the presentation of evidence was part of the trial process. He also possessed a basic understanding of what evidence was with an emphasis on physical evidence such as DNA evidence. He was able to articulate that both prosecution and defence counsel present the evidence at trial. He was also able to describe that the purpose of evidence presented by the prosecution was to 'try and find me guilty'. He further explained that the defence lawyer's role is to 'prove that there is a fault in their evidence'.
Dr McCue noted that the accused did not appear to understand the different types of evidence such as lay witness or expert evidence. In my view this is an unnecessary understanding.
The accused's counsel submitted that it is one thing for the accused to understand the case against him that is contained in the written witness statements but a different thing for him to be able to understand the substantial effect of the oral evidence presented by the prosecution during the trial. She submitted that it is the latter understanding that the accused must be capable of having. She said that his ability to do that is 'doubtful'.
I acknowledge that the evidence is to the effect that the accused will have greater difficulty than the average person in maintaining attention and focusing on the evidence during the course of the trial. However, I am satisfied that the precautions and strategies that I outlined in the section of this judgment dealing with the accused's ability to follow the course of the trial will ensure that the accused's ability to understand the substantial effect of evidence presented by the prosecution in the trial will remain.

Whether the accused is unable to properly defend the charge (s 9(g))

The accused admitted to Dr Hall that he would be unlikely to address any concerns that would arise in the course of a trial as this would elevate his anxiety or fear to unbearable levels. Dr Hall said that the accused may also be overwhelmed with the pace and complexity of the information discussed in court due to attentional difficulties, problems with sustained focus and mental flexibility. As such, a court setting is likely to be such a challenging situation that the accused's cognitive, mental health and personality factors would interact to reduce his capacity to defend the charge. Dr Hall noted that it is likely that the accused will require reasonably regular breaks in court to allow for fluctuations in attention and perhaps difficulty processing verbal information. Breaks would also allow his counsel to reiterate the processes and test his understanding, as well as provide him with opportunities to reduce his anxiety levels. Dr Hall concluded that with specific adaptions to the legal process, the accused was assessed to have the capacity to be able to properly defend the charge.
Dr McCue said that the accused communicated to him a belief that his lawyer had evidence to present in the case. He perceived that his lawyer was in a position to defend him against the charge. He was able to describe in some detail what the nature of that evidence was and that if argued successfully, the charge would be dropped or he would be acquitted.
The accused acknowledged that at times he does not always understand what his lawyer tells him. He gave Dr McCue an example of that. He said that he had done nothing about it. When asked by Dr McCue how he could handle it differently, the accused stated that he could ask his lawyer but he found it hard to do so.
Dr McCue said that despite the accused not possessing a full and detailed understanding of his defence, it appeared he had obtained sufficient information from his lawyer and retained it in a way that would enable him to defend the charge.
Ms Marley expressed the opinion that the accused may agree rather than assert his wishes in court. She said this may result in disassociation if something threatening was being discussed in court. She is of the opinion that the accused is not fit to plead in this regard without changes to court procedure to accommodate the accused's particular vulnerabilities.
Dr Vidovich also said that the accused is unlikely to be assertive in his defence of the charge. She expressed concerns that the accused is vulnerable to providing unreliable answers under cross‑examination due to his submissive personality, his lack of confidence, his meekness and his propensity to withdraw or fail to provide explanations so as to try to minimise interaction and potential conflict. Dr Vidovich had reviewed the electronic records of interview which the accused participated in with the police. She concluded that the accused 'may be more susceptible to misinterpreting or failing to closely attend to questions. His difficulty in managing information in his mind and sustaining attention may result in him being more easily led due to trouble keeping track'. She said that he was more vulnerable to suggestion due to his disabilities, especially when he was under stress.
In the usual case prior to trial, an accused provides an account of relevant events to his counsel and instructions to enable counsel to present a defence and prepare for and cross‑examine the State's witnesses. It is counsel's obligation, not the accused's obligation, to determine how to run the defence and what questions to ask of witnesses. There is no reason why the accused cannot provide his account and relevant instructions to his counsel prior to trial. I acknowledged that it is likely to be a much more time consuming and laborious process than for other accused but the accused does not lack the capacity to perform these tasks.
The more challenging situation for the accused will be to follow the evidence in detail during the trial and discern when there is a discrepancy between a witness' statement and their oral testimony. However that is something which can be assisted by early provision of the prosecution brief, identification of prosecution witnesses and permission for the accused to have a copy of the prosecution brief in the dock so he can follow the witness' evidence from their statements.
Even if this process does not result in the accused identifying differences between the statements and the oral testimony, the accused has legal counsel whose duty it is to do that.[17] As was said in Ngatayi the law does not mean that an accused can only be tried if he is 'capable unaided, of understanding the proceedings so as to be able to make a proper defence'.[18] The accused has the assistance of experienced defence counsel. It may be that counsel will require more time than usual to perform her obligation but I see no reason why that time cannot be provided.
[17] R v Birks (1990) 19 NSWLR 677, 683 (Gleeson CJ).
[18] Ngatayi (9).
During the hearing there was an emphasis placed on the apparent conflict between giving the accused breaks during the trial to reduce his stress and anxiety and giving breaks to enable counsel to speak to the accused about the trial and to take instructions. In my opinion, proper preparation for trial will reduce significantly the need to speak to the accused during each break about the trial and to take instructions so as to render the trial process manageable for the accused.
I am not satisfied on the balance of probabilities that the accused is unable to properly defend the charge. Evidently he has been able to give instructions to his lawyer in order for his lawyer to mount a defence to the charge.
It may well be difficult for the accused to make a free and voluntary choice to give evidence and if he wishes to give evidence, to give that evidence in a courtroom before a jury. However, it is my opinion that there can be time given to the accused and changes made to the trial process in order to ensure that he is able to make that decision and to give evidence, should he choose to do so. The decision whether or not to give evidence is likely to be a difficult and anxiety‑producing decision and process for any accused. I acknowledge that it will be more difficult and will produce more anxiety for this accused than for most others. This does not mean that the accused is unable to properly defend the charge.
There is a greater risk than usual that cross‑examination by leading questions will result in the accused acquiescing with propositions put to him or saying 'I don't know' in order to avoid having to verbalise an answer. There is no absolute right to put leading questions to a witness in cross‑examination.[19] It may be that if the accused chooses to give evidence that the State will not be permitted to put unfairly leading questions to the accused and the presiding judge will closely supervise the examination of the accused to ensure that it is fair. It is also possible for the accused to be declared a special witness and for him to have the benefit of arrangements available to special witnesses.[20]
[19] See for example the discussion in Cross on Evidence (9th ed) [17165].
[20] Evidence Act 1906 (WA), s 106R.

Conclusion

For these reasons I am not satisfied on the balance of probabilities that the accused is not mentally fit to stand trial. I acknowledge that the accused's condition may fluctuate during the course of the trial. Should it be that his mental impairment fluctuates to such an extent that it deprives him of one of the capacities in the Act s 9, this decision can be reconsidered.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CC
Secretary
31 JANUARY 2019