The State of Western Australia v T-S
[2019] WADC 40
•22 MARCH 2019
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- T-S [2019] WADC 40
CORAM: SLEIGHT CJDC
HEARD: 4 & 5 FEBRUARY 2019
DELIVERED : 22 MARCH 2019
FILE NO/S: IND 234 of 2017
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
H-J E M T-S
Catchwords:
Criminal procedure - Fitness to stand trial - Intellectual disability - Whether court bound by expert opinion
Legislation:
Criminal Law (Mentally Impaired Accused) Act 1996 (WA)
Result:
Accused is declared fit to stand trial
Representation:
Counsel:
| The State of Western Australia | : | Mr J Whalley |
| Accused | : | Mr A Sullivan |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| Accused | : | Legal Aid - Perth |
Case(s) referred to in decision(s):
Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1
Hone v The State of Western Australia [2007] WASCA 283
Ngatayi v R [1980] HCA 18; (1980) 147 CLR 1
R v John M [2003] EWCA 3452
R v Presser [1958] VR 45
R v Walls [2011] EWCA Crim 443
The State of Western Australia v O'Meara [2018] WASC 121
SLEIGHT CJDC:
The accused is charged with an offence that between 6 November 2013 and 22 November 2013 he sexually penetrated the complainant without her consent by inserting his penis into her vagina. The accused has pleaded not guilty.
The accused suffers from a mild intellectual disability. An issue has arisen as to whether he is fit to stand trial. In my opinion, at first blush it is somewhat surprising that a person who suffers only a mild intellectual disability would not be fit to stand trial. Most of the cases that come before the court where persons are held unfit to stand trial due to an intellectual disability are usually more significantly intellectually disabled. However, in this case there are three experts (two neuropsychologists - Dr Mandy Vidovich and Dr Jonson Moyle - and one psychiatrist - Dr Siva Bala) who have expressed opinions that the accused is unfit to stand trial. The psychiatrist, Dr Bala, was equivocal in his initial opinion but as he had only interviewed the accused by way of video link, and taking into account the opinions expressed by the neuropsychologists, he later, in deference to the conclusions reached by the neuropsychologists, concluded that the accused was unfit to stand trial.
The primary reasons for the opinions of the experts that the accused was not fit to stand trial were that the experts believed that the accused would be unable to adequately follow the course of the trial, understand the substantial effect of the evidence presented by the prosecution in the trial and did not have the ability to properly defend the charge. What weight is given to the opinions of the experts is qualified by the fact that the experts have little experience or expertise as to the nature and conduct of a criminal trial. Nor did any of the experts consider what are likely to be the evidentiary issues at trial.
Further, careful consideration needs to be given in this case as to the extent the disadvantages the accused suffers due to his intellectual impairment can be offset by the trial judge and also the fact that he will be represented by counsel.
The accused also participated in a police interview on 25 May 2016. In this interview the accused admitted having sexual intercourse with the complainant but claimed that it was consensual and that it was in a different room of the house than described by the complainant. This police interview is important because it suggests that the primary issue at trial is likely to be focused on the issue of consent. Further, the police interview gives me an independent opportunity to observe the accused under questioning and to form my own opinion as to his capacity to adequately follow questions and give responsive answers.
Another pertinent feature of this case relevant to whether the accused is fit to stand trial is the fact that the complainant did not complain about the alleged offence to the police until October 2014. The accused was not questioned about the allegations until May 2016.
If the accused is found unfit to stand trial then the court must either make an order for his release or make a custody order. The accused has no prior criminal history and the State in its submissions does not oppose a release order being made if the court rules the accused is unfit to stand trial. In such circumstances, unsurprisingly, counsel for the accused submits that the accused is unfit to stand trial. The State's submission is neutral on the issue but submits it is open to the court to reject the expert evidence.
The law
Any question about an accused's mental fitness to stand trial must be dealt with under the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (the Act)[1]. The starting point under the Act is that 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 fit to stand trial is to be decided by the presiding judge on the balance of probabilities after inquiring into the question and informing him or herself in any way that the judicial officer thinks fit.[3]
[1] Section 130 of the Criminal Procedure Act 2004 (WA).
[2] Section 10 of the Act.
[3] Section 12 of the Act.
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]
[4] Section 9 of the Act.
'Mental impairment' is defined to mean intellectual disability, mental illness, brain damage or senility.[5]
[5] Section 8 of the Act.
There is no definition or explanation in the legislation as to the meaning to be given to the expressions 'unable to follow the course of the trial', 'unable to understand the substantial effect of the evidence presented by the prosecution in the trial', or 'unable to properly defend the charge' contained in s 9 of the Act. What is clear is that the mere fact that an accused suffers from a mental impairment, with the inherent disadvantage this implies, does not mean that the accused is 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 s 9 of the Act.[6]
[6] The State of Western Australia v O'Meara [2018] WASC 121 [11] (Jenkins J).
The High Court has, in a number of decisions, warned against setting the standard too low when considering whether a mentally impaired person is unfit to stand trial. In Eastman v The Queen[7] the court commented:
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.
[7] Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 [24] (Gleeson CJ).
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 not. 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]
[9] Ngatayi v R (8) – (9).
The criteria contained in s 9 of the Act largely mirrors the common law criteria of deciding whether an accused is fit to stand trial. It is therefore helpful to look at the authorities on the issue of fitness to stand trial under the common law. In the UK decision of R v John M[10] the Court of Appeal endorsed directions given by a judge to a jury on the question of fitness. The judge at first instance identified six criteria of capacity that an accused must have:
(1)understanding the charge;
(2)deciding whether to plead guilty or not;
(3)exercising his right to challenge jurors;
(4)instructing solicitors and counsel;
(5)following the course of the proceedings;
(6)giving evidence in his own defence.[11]
[10] R v John M [2003] EWCA 3452.
[11] R v John M [20].
The judge went on to direct the jury in the following terms (I paraphrase):
1.In relation to the issue of instructing his solicitors or counsel the accused must be able to convey intelligibly his instructions as to his defence. It is not necessary these instructions are plausible, believable or reliable.[12]
2.In relation to the issue of following the course of the proceedings, the accused must be able to understand what is said by the witnesses and by counsel in their speeches and communicate intelligibly any comments to his lawyers. It is not necessary that any of the accused's comments are valid or helpful to his lawyers or helpful to his case. It is often the case that a defendant fails to see what is or is not a good point to make in relation to his defence.[13]
3.In relation to the issue of the accused giving evidence in his defence, the accused must be able to understand questions he is asked in the witness box, apply his mind to answering them and give intelligible answers. It is not necessary that his answers should be plausible or believable or reliable. Nor is it necessary that the accused must be able to remember all or any of the matters which give rise to the charge against him. He is entitled to say he has no recollection of those events, or indeed of anything that happened during the relevant period.[14]
[12] R v John M [21].
[13] R v John M [22] ‑ [23].
[14] R v John M [24].
In the decision of R v Presser[15] (cited with approval in Ngatayi v R) Smith J summarised the position to be:
He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. 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.
[15] R v Presser [1958] VR 45, 48 (Smith J).
Taking these principles into account it is necessary to carefully analyse the evidence given by the experts in this case against the relevant legal principles. The fact that experts agree is not enough. A court would be failing in its duty to the public, the complainant of serious sexual offending and the accused if it did not rigorously examine the evidence and reach its own conclusion.[16] A court should be cautious in drawing conclusions contrary to the unanimous expert evidence. However, the court is entitled to reject the evidence if there is other evidence or circumstances which throw doubt on the expert evidence.[17]
[16] R v Walls [2011] EWCA Crim 443 [38] (Thomas LJ).
[17] Hone v The State of Western Australia [2007] WASCA 283 [1] ‑ [13] (Steytler P).
The State's case
The State's case is that the accused and the complainant met in 2011 and were in a relationship for a couple of weeks. The complainant recalls that during this period they had consensual sexual intercourse on one occasion. It is alleged that sometime between 7 November 2013 and 21 November 2013 the complainant and a witness (Robert) were at a private house. At the time the accused and the complainant were aged 17. The accused arrived at the house as an invited guest and had lunch with the complainant and the witness Robert. The lunch was Chicken Treat purchased by the witness Robert. After lunch the complainant says she felt unwell and tired and went to a bedroom and fell asleep. She says she was wearing only a nightie and underwear. She was lying on top of the bed sheets. She says that she woke a short time later finding the accused having sex with her without a condom. The complainant says that in order to penetrate her the accused had pushed her nightie up to her head exposing her breasts, removed her underwear and had spread open her legs in order to penetrate her. She says she experienced pain.
The complainant says she struggled to get the accused off by pushing him in the chest four or five times. She says the accused stopped and sat up. The complainant says she observed blood on her bed sheet and left the bedroom.
The complainant says she ran into the toilet to urinate. She noted blood in the toilet and decided to have a shower. The complainant says that she was crying and went to find the witness Robert who was in another bedroom. The witness Robert suggested she may be menstruating. The complainant says that while she was speaking to the witness Robert, the accused came in and said he had to go and just before leaving said words to the effect 'you can't be pregnant, I didn't finish in you'.
The complainant says she did not remove and clean the sheet but left it on the bed until March 2014 when she obtained new sheets. The bloodstained sheet was then removed and placed in the laundry. On 8 October 2014 the complainant consulted a doctor concerning a urinary tract infection. She informed the doctor that a possible cause of her problem was that she had been 'raped' the previous year. The doctor recommended she undergo tests for sexually transmitted diseases. When the doctor reported the need for testing to the complainant's mother, the complainant's mother became very upset that the complainant had not told her or reported the matter to the police. The complainant then attended the Mandurah Police Station and made a complaint.
The witness Robert in his police statement says that he, the complainant and the accused had been watching TV together after lunch. He said the accused sat with the complainant on a sofa. He said the complainant got up and headed towards a bedroom readily followed by the accused. He said he observed them go into the bedroom together and close the door behind them. He said the complainant was in the bedroom for about half an hour. When she came out of the bedroom she was holding a sheet to cover herself. He said he observed some blood on her hands and she was upset and crying. She went to the toilet and came out and was still crying. He said that she then went and had a shower. He said the accused left the house and later the complainant told him that she had been raped by the accused and not to tell her mother.
Following the complaint a detective David Hackett spoke to the accused on 16 March 2015 but formed the view that due to the accused's learning difficulties and his ability to understand the nature of the allegation, that he should not be interviewed without a responsible adult. At the time the accused was living with his mother who also appeared to have a learning difficulty and he decided she was unsuitable to act as a responsible adult. Nothing appears to have been further done about interviewing the accused until about May 2016. Detective Hackett then made enquiries as to the accused's whereabouts and found that he was residing in the north of the State with his father. Detective Hackett then requested detectives located in the north of Western Australia to interview the accused, which they did without a responsible adult being present.
Police interview with accused
At the commencement of the interview the accused was given the usual caution. The accused had some difficulty repeating the caution back to the interviewing officer. As a part of the process the following exchange occurred:
Q.Okay. So we can start with, actually let's just cover that caution that I gave you earlier again.
A.Yep.
Q.Um, tell me your understanding of that caution?
A.What do you mean, like – –
Q.When I said you don't have to speak to me if you don't want to.
A.No, no, no. I'm alright.
Q.Yeah? So if I ask you ten questions, how many questions do you have to answer?
A.Ten.
Q.None?
A.Ten.
Q.No.
A.Oh what?
Q.So if I ask you ten questions how many questions do you have to answer?
A.None.
Q.None if you don't want to.
A.Oh, okay. Yeah. I know what you mean.
Q.Ten if you want to.
A.Yeah, yeah, yeah.
Q.It's totally your choice.
A.No. I, I will tell you everything I know.
In the interview the accused stated he had visited the complainant two or three years earlier[18] when a friend was there. The complainant's mother was not home.[19] He said he was invited to attend there by a text message he received from the complainant and the witness Robert.[20] He went to the house by bus. He caught the bus at the Mandurah train station. It was bus No. 600.[21] They had fried chicken for lunch purchased by Robert.[22] He remembered that they were sitting on the couch watching TV together.[23] He remembered at one point going outside with the complainant and the witness Robert so that they could have a smoke. He did not smoke.[24]
[18] ts 19 of visual record of interview.
[19] ts 23 of visual record of interview.
[20] ts 23 of visual record of interview.
[21] ts 22 of visual record of interview.
[22] ts 23, 26 of visual record of interview.
[23] ts 27 of visual record of interview.
[24] ts 28 of visual record of interview.
When questioned about whether he had sex with the complainant the following exchange occurred:[25]
[25] ts 15 ‑ 16 of visual record of interview.
Q.Did you have an intimate relationship with her?
A.No, it's just a relationship.
Q.Okay. Do you know what intimate means?
A.No.
Q.Okay. Intimate means that you have a sexual relationship.
A.No. It wasn't sexual. Just having, having fun, like, kisses, cuddling, um, a bit of messing around with the body parts and all that kind of stuff but no actual real sex.
Q.Okay. Did you ever have sex with her?
A.No. It was, like, playing, like, playing.
Q.Okay. So tell me the difference between play and actually having sex with a person?
A.Well, sex is, like, want to have a baby and all that kind of stuff.
Q.Yep.
A.And playing is, like, um, oh, I can't really explain it. Um, – –
Q.Okay. What's, what's your understanding of penetration.
A.I don't know what it is.
Q.Okay. So if, if, um, a male's penis goes into a woman's vagina, that's penetration.
A.Oh, once I did it.
Q.Okay.
A.But that wasn't actually real sex. It's just, like, mucking around and all that kind of stuff.
Q.Okay.
A.And, like, I, I just quit that because she, she was, she had bipolar as well so – –
Q.Okay.
A.Yeah. I, I really didn't want to really do it anymore. So I stopped doing it and all, all of a sudden I got this shit from, from her and all that sort of stuff.
Q.Okay. In what way do you mean by play then?
A.Like, it's like having sex.
Q.Yep.
A.But not actually really doing it.
A.Yep.
A.But if you're having sex it, it goes for a, for a, for a long time.
Q.Okay.
A.But it only went for a few minutes. That's about it.
The nature of the allegation was put to the accused:[26]
[26] ts 18 of visual record of interview.
Q.Um, because she's made an allegation that there was sexual penetration without consent.
A.No. She, she wanted it. She wanted it as well.
Q.Okay.
A.She, she's, like, getting, she's, like, really hates me. So she'll get anything to do, get me, like, in trouble.
Q.Okay
A.Like, she did it once before but it didn't go very far. Then she did it again now. So, yeah, the, it's just like, she, she wanted it as well. She, she did not refuse and all that kind of stuff.
Q.Okay
A.So I don't know what she was going on about, like, not wanting to have sex, but she wanted it too.
When it was put to the accused that he had followed the complainant to the bedroom, he stated he had no memory of following her to the room.[27] When it was put to him that the complainant went to sleep and that she woke up with him on top of her, he said it was 'a big, fat lie'.[28] When it was put to him that the complainant alleged that he had sexually penetrated her without her consent, he replied:
No. Like I told you, she wanted it as well – – she wanted to have fun as well. – – Get into it and all that kind of stuff but there was no real spark so we stopped.[29]
[27] ts 27 and ts 29 of visual record of interview.
[28] ts 29 of visual record of interview.
[29] ts 25 of visual record of interview.
He stated that they had 'fun and all that kind of stuff' in the lounge room.[30] He said that 'it wasn't really a sexual, sexual assault. She wanted it, to want to have fun as well'.[31]
[30] ts 29 of visual record of interview.
[31] ts 31 of visual record of interview.
He was later asked:[32]
[32] ts 39 ‑ 40 of visual record of interview.
Q.Okay. Did you have sex with [the complainant] that day?
A.Not for the half an hour. Not for the half an hour.
Q.No. I'm not saying you were having sex with her for half an hour.
A.No.
Q.I'm saying that – –
A.I, I, we did have fun, like, – –
Q.Yep.
A.Stick the penis in the vagina moment – –
Q.That's – –
A.And all that kind of stuff. There was no spark.
Q.Okay. And where, where did that happen?
A.In the lounge room.
Q.In the lounge room?
A.Yeah.
Q.So where was Robert at the time?
A.I don't know. Because I don't know. He was having, we were having lunch. He went, he went out and all that kind of stuff and I think that's when it happened and all that kind of stuff.
Q.Okay.
A.Yeah.
Q.And you're saying you didn't go into her room?
A.No.
During the course of the interview the accused expressed some difficulties remembering details, for example, where the witness Robert was at the time the accused engaged in sex with the complainant in the lounge room.[33] Also he could not recall what the complainant was wearing although he thought it was a 'onesie'.[34]
[33] See also ts 40 of visual record of interview.
[34] ts 31 of visual record of interview.
When it was put to him that Robert had said that he observed both the complainant and the accused go to the bedroom and close the door,[35] the accused said it was a lie.
[35] ts 39 of visual record of interview.
When it was put to him that the complainant alleged that she was bleeding from her vagina on the bed he disputed this and said she bled on the toilet.[36]
[36] ts 46 of visual record of interview.
Background of the accused
The background of the accused is relevant as it provides an opportunity to consider how functional he is in the community, which in turn is relevant to his intellectual capacities. The evidence of the accused's background was taken by Dr Vidovich and Dr Moyle, partly from the accused himself and partly from his parents.
The accused has no previous court history.
During his schooling the accused experienced learning difficulties and was provided with additional support. However, he completed Year 12 at John Tonkin College. School reports from 2011 and 2012 indicate the accused attended a 'Career Enterprise Centre' which meant that his curriculum was targeting functional academics and life skills, rather than the mainstream curriculum. The Year 11 and 12 reports describe that the accused required 'constant supervision and support to gain an understanding of verbs and nouns' and 'extensive support to read a simple text and demonstrate understanding of the text'. Further, his school reports conveyed ongoing concerns regarding respecting others personal boundaries and issues regarding appropriate social interactions.[37]
[37] Report of Dr Moyle dated 27 July 2018 (page 4 ‑ 5).
The accused described himself as being a loner at school. His recreational interests at school consisted of Anime, comic books and playing computer games. He has played indoor soccer as a part of a team since primary school days.[38]
[38] Report of Dr Vidovich dated 4 January 2018 (page 4).
The accused participated in a 'Disability Course Program' with BHP for a period of 12 months. He was hoping it would lead to full‑time employment but this did not occur. He has worked at a local IGA store as a trolley boy and cashier service officer.[39]
[39] Report of Dr Vidovich dated 4 January 2018 (page 5).
The accused has previously lived in a shared house arranged by the Disability Services Commission. He lived in this facility for a period of three months. He then lived with a girlfriend for a period of time in Kalgoorlie and more recently has lived with his parents and four younger sisters in Newman where his father has employment.[40]
[40] Report of Dr Vidovich dated 4 January 2018 (page 3).
The accused and his parents receive a Disability Support Pension. In addition to this pension, the accused is in receipt of income by working behind the bar at the local golf club on Friday and Saturday evenings. This involves simple bar work, as all drinks are in cans or bottles; the accused is not required to ' pour beer' or mix drinks – he simply opens cans or bottles, receives cash and helps clean up.[41]
[41] Report of Dr Moyle dated 27 July 2018 (page 5).
Evidence of Dr Vidovich
Dr Vidovich is an experienced clinical neuropsychologist. She holds a doctorate in psychology. She has produced expert neuropsychological reports to the courts on many occasions and has also given evidence as an expert on many occasions. However, Dr Vidovich has not been present for the entirety of a criminal trial.[42]
[42] ts 137 of 4 February 2019.
Dr Vidovich prepared two written reports:
1.A report dated 4 January 2018 commissioned by the accused's lawyers; and
2.A report dated 15 January 2018 again commissioned by the accused's lawyers.
Dr Vidovich also gave oral evidence on 4 February 2019.
Dr Vidovich reviewed and assessed the accused on 11 December 2017 for over four hours. He arrived for the appointment independently. The neuropsychological testing was conducted in a single session. The testing used the Wechsler Adult Intelligence Scale – IV edition. In her report, Dr Vidovich noted that throughout the process the accused was observed to have difficulty sustaining his attention and also careless at times with respect to monitoring his output. His working memory was also poor and collectively, he had trouble attending to and mentally manipulating information in his mind.[43]
[43] Page 6 of the report (4 January 2018) at par 2b.
Dr Vidovich concluded in her report of 4 January 2018 that the accused was of borderline intellect with notable difficulty sustaining attention and with limitations in his expressive and receptive language skills.[44]
[44] Page 9 of the report (4 January 2018).
In relation to the police interview Dr Vidovich made the following observations:
Apprehension regarding his ability to participate in a police interview was recognised early on, yet was undertaken without the presence of a responsible adult/support person. During the police interview process, there were clear instances whereby his understanding of information presented to him was dependent upon that explained by others, thereby making him more vulnerable during the questioning. His understanding of matters related to sexual acts and consent also impressed as being very limited and raise concern regarding self-protective factors with regard to sexual activity and behaviour.[45]
[45] Page 9 of the report (4 January 2018).
In both her reports dated 4 January 2018 and 15 January 2018, and in her oral evidence, Dr Vidovich concluded that the accused was not fit to stand trial because he met the criteria set out in subsections 9 (e), (f) and (g) of the Act.
In her report dated 15 January 2018 Dr Vidovich stated:
(a)Unable to understand the nature of the charge;
[The accused] provided a very rudimentary statement regarding the nature of his charge. It is of relevance that when he was initially interviewed in relation to the alleged offences, his understanding of matters related to sexual activity and what constituted such, was poorly developed, with him requiring explanation of words such as 'intimate' and 'penetration'. With clarification, [the accused] would be capable of understanding the nature of the charge.
(b)Unable to understand the requirement to plead to the charge or the effect of the plea;
[The accused] understands the need to plead to the charge.
(c)Unable to understand the purpose of a trial;
With explanation, [the accused] would be able to develop an understanding of the purpose of a trial. At the time of his recent assessment, it was evident that he had a very superficial understanding of Court proceedings and he impressed as having limited appreciation of the significance of matters related to his charge and the importance of a trial. His discourse also suggested a somewhat naïve and egocentric perspective regarding aspects of trial proceedings (e.g. witness testimony).
(d)Unable to understand or exercise the right to challenge jurors;
[The accused] would require assistance with respect to this component of any legal proceedings. He is unlikely to foresee a possible need for this type of action and would require explanation as to the implications of any potential juror bias. He would not be capable of independently actioning this behaviour.
(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.
With respect to components (e) through to (g), it is my clinical opinion that [the accused] is not capable of following the course of a trial, would have significant difficulty understanding and keeping track of the evidence presented by the prosecution, and would thereby, in effect, be unable to properly defend the charge. His poor capacity to sustain attention and trouble mentally manipulating information in mind, would make it challenging for him to keep track of, lengthy dialogue, questions with multiple components and specific details. His speech and language weaknesses also influence his capacity to effectively communicate his thoughts and comprehend information. He impressed as socially immature, passive and lacking in protective behaviours. Entirely dependent on legal counsel, the overall clinical impression was that of someone who was unable to review, critique or contest information presented to him in a constructive or efficient manner.[46]
[46] Page 1 – 2 of report dated 15 January 2018.
In her oral evidence Dr Vidovich expressed the opinion that the accused with assistance could understand the concepts of sexual penetration and in broad terms the issue of consent.[47] Although she accepted that trial management arrangements such as taking breaks, pre‑recording the complainant's evidence so as to give the accused sufficient time to discuss the evidence with his counsel, and judicial intervention to ensure that questions were expressed simply, would be helpful, she did not believe that this would be sufficient to ensure that the accused would be able to follow the trial and properly defend himself.[48] She believed that he was particularly vulnerable because of his passivity to agree to matters or to simply respond 'I don't know' when he was tired or overwhelmed.[49] Dr Vidovich also believed the accused may be prone to confabulation.[50] However, there was no evidence in her assessment of the accused of confabulations in terms of lengthy discourse to fill gaps.[51]
[47] ts 151, 153 dated 4 February 2019.
[48] ts 157 dated 4 February 2019.
[49] ts 160 dated 4 February 2019.
[50] ts 147 - 148 dated 4 February 2019.
[51] ts 148 dated 4 February 2019.
Evidence of Dr Jonson Moyle
Dr Moyle is a clinical neuropsychologist. He holds a Masters in neuropsychology and a doctorate in psychology. He has extensive experience in neuropsychological assessment of adolescents and adults. Dr Moyle has completed reports pertaining to the issue of a person's fitness to stand trial on dozens of occasions. Like Dr Vidovich, he has not witnessed a trial in its entirety and has only on a handful of occasions been asked to give evidence at a trial.[52]
[52] ts 129 of 4 February 2019.
As a result of an order of the court, Dr Moyle interviewed the accused and conducted a neuropsychological assessment on 16 July 2018. Dr Moyle then prepared a report dated 27 July 2018 and also gave oral evidence on 4 February 2019.
Dr Moyle conducted the same testing as Dr Vidovich, being the Wechsler Adult Intelligence Scale – IV edition. The results of the testing indicated that the accused suffered from an intellectual disability. The accused's full‑scale IQ meant that the percentage of age-matched peers that he outperformed was only 2% to 5%. This placed him below the Borderline category (which is 6 to 15 percentile) and in the category of abnormal/impaired. There were commensurate impairments in language, visual‑spatial skills, some aspects of memory, and his executive functioning (that is, reasoning, resetting ideas, appropriately inhibited responses and problem-solving).[53]
[53] Page 6 ‑ 9 of report.
Dr Moyle concluded that the accused is able to retain simple information given to him, although his recollection of that material may contain errors of repetition or intrusion. Current results indicate the accused has impaired abilities to understand more complex or nuanced aspects of language, and difficulties dealing with abstraction and inference.
Dr Moyle concluded as follows in his report dated 27 July 2018:[54]
[54] Page 10 ‑ 11 of report.
As to aspects of fitness to plead, the results form the current assessment informs the following items for consideration:
•Ability to understand the nature of the charge.
42.I agree with Dr Vidovich's statements that the accused's understanding of the charges seems superficial, and he possesses a poorly-developed understanding of sexual activity. His understanding of the charge and the subsequent implications is dependent upon someone providing clear, concrete explanations.
•Ability to understand the requirement to plead to the charge or the effect of a plea.
43.I feel that the accused understands that he needs to plead to the charge, as instructed by others. However I hold doubts that he understands the potential impact of a plea.
•Ability to understand the purpose of a trial.
44.In my opinion the accused's understanding of the purpose of a trial is superficial. Even with guidance and clear explanations, I feel that his cognitive limitations will significantly limit his understanding of the significance of information that may be presented during the course of the trial. He stated to me that he found the trial confusing, a statement consistent with his poor overall intellectual skills and cognitive skills as outlined earlier.
•Ability to understand or exercise the right to challenge jurors.
45.Based on the current results and information available to me, I do not feel that he has the ability to understand this aspect of legal proceedings.
•Ability to follow the course of a trial.
46.In my opinion I do not feel that the accused is able to accurately follow the course of a trial. His impairments in multiple aspects of cognition including attention, language, working memory and executive functioning, would significantly limit his capacity to track the trial as it progressed.
•Ability to understand the substantial effect of evidence presented by the prosecution in the trial.
47.Consistent with the above statements, I do not feel that the accused has the cognitive ability to appreciate the impact of evidence presented by the prosecution during the trial, and the implications items of evidence may have.
•Ability to properly defend the charge.
48.In my opinion, the accused will require assistance in advising his legal representative as to matters occurring over the course of the trial. The combination of his longstanding cognitive limitations, his educational limitations and his limited social development as conveyed by multiple reports, gives the impression of a highly vulnerable individual who is at risk of manipulation from others. He is fully dependent on others for the defence of the charge.
In his oral evidence Dr Moyle stated that with the assistance of clear concrete explanation the accused was capable of understanding the charge against him although he will continue to have limitations around the depth of his understanding.[55] He expressed the opinion that the accused understands the concept of sexual penetration and has a superficial understanding of the concept of consent.[56]
[55] ts 109 of 4 February 2019.
[56] ts 110 of 4 February 2019.
Dr Moyle stated that the accused has a limited ability to understand the consequences of entering a plea and would need structured support in entering a plea.[57]
[57] ts 111 of 4 February 2019.
Dr Moyle also stated that the accused's understanding of the purpose of the trial was superficial. He believed that clear and concrete explanations will be very helpful. Dr Moyle agreed that if the issue of the trial was simply whether he had inserted his penis and whether she wanted it to occur, then the accused could comprehend this.
In relation to the issue of exercising a right to challenge jurors, Dr Moyle thought the accused was capable of understanding the concept of delegating this role to his lawyer.[58]
[58] ts 113 of 4 February 2019.
Dr Moyle believes that the accused's capacity to follow the course of the trial is highly superficial. Dr Moyle is of the opinion that the accused would find the trial confusing and struggle to adequately follow the narrative of the trial.[59]
[59] ts 113 of 4 February 2019.
Dr Moyle agreed also that breaks and the pre-recording of the evidence of the complainant would help in terms of the accused being able to track the superficial events, but that he would be unable to speak to the implications of what witnesses said, what their evidence meant for him or what it meant for others involved in the trial.[60]
[60] ts 113 - 114 of 4 February 2019.
Dr Moyle explained that the testing of the accused's memory in his assessment process involved recalling new information provided by Dr Moyle. As to the ability of the accused to recall events of several years ago, he was unable to speak with precision but said he thought that his capacity to reliably and accurately recall events from several years ago was weaker than someone with better overall cognitive abilities.[61]
[61] ts 115 of 4 February 2019.
On the issue as to whether the accused could properly defend the charge Dr Moyle did not feel that the cognitive acumen of the accused enabled him to do so. By this he meant that the accused's understanding of the process is likely to be very superficial. He believed he would struggle to be able to appreciate the different evidence that was given and struggle to appreciate the process of the trial and what is involved in that and be able to adequately track the evidence as it unfolded. He stated that he felt that the accused might be able to repeat information back but he believed his understanding of what he would be repeating, whether it was events and even the consequences of those, and what that meant for him over the next several years or future part of life would be incomplete and certainly a lot lower then he would expect from a healthy person of his own age.[62]
[62] ts 116 of 4 February 2019.
Dr Moyle was questioned about the accused's capacity to understand some of the issues that are likely to arise in the trial. Dr Moyle stated that he thought the accused could understand that he might not have consent if the person was asleep.[63]
[63] ts 124 of 4 February 2019.
Dr Moyle believed the accused was vulnerable to confabulation because during the assessment process the accused invented a recall of things supposedly said by Dr Moyle but which had not been said.[64]
[64] ts 120 of 4 February 2019.
Evidence of Dr Siva Bala
Dr Bala is a consultant psychiatrist who is currently located in Cairns where he is the director of Mental Health, The Cairns Clinic. Dr Bala assessed the accused and prepared a report ordered by the court as to the accused's fitness to stand trial. Dr Bala prepared a written report dated 5 September 2018 and also sent a letter to the accused's lawyers dated 27 December 2018 answering specific questions. Dr Bala also gave oral evidence on 4 February 2019.
The assessment process undertaken by Dr Bala of the accused consisted primarily of a video link interview with the accused for one hour and 15 minutes on 3 September 2018. Dr Bala also had access to documentation including the reports of Dr Vidovich and Dr Moyle referred to earlier in this decision.
Dr Bala described the accused in the following terms in his report dated 27 December 2018:
He was compliant, seemingly naïve in spite of my caution in providing information that may have been perceived as incriminating. He had a child‑like manner and was eager to please. His narrative was marked by significant inconsistencies, particularly with respect to dates and times which he was unaware of. In other words, he did not attempt to deliberately mislead me but was clearly unaware of the inconsistencies of his statements. Beyond superficial answers, he replied with 'I don't know' when asked for clarification. With assistance, he was able to progress further. His level of understanding of the questions was adequate in his answers were superficial, literal and lacking sophistication. At times he seemed to be suggestible but also was able to disagree when required.[65]
[65] Page 6 of the report.
In relation to the police interview with the accused, Dr Bala provided the following summation.
I note that during the police interview, [the accused] presented as cooperative, but inconsistent and easily confused and flustered. For example, in spite of claiming to understand the caution given by the police, he failed to appreciate that he does not need to answer questions. He waived his right to a lawyer rather naïvely. He gave confusing and inconsistent information that require clarification with closed questions. He had difficulty when asked to explain words such as what 'intimate' meant and had difficulty identifying the difference between sex and sexualised touching. He relied on simple definitions of sexual matters and his level of intellectual sophistication is below that expected for his age. He became confused when questioned about the details of the alleged offence including the presence of other persons, the room where he was situated et cetera.[66]
[66] Page 6 of the report.
Dr Bala concluded that the accused suffered from a mild intellectual disability. In relation to the criteria contained in s 9 of the Act Dr Bala concluded as follows:[67]
(a)The accused understood the charge when explained at an appropriate level.
(b)The accused understood the requirement to plead to the charge or the effect of the plea if it was explained to him.
(c)The accused understood the purpose of the trial albeit that his understanding was superficial.
(d)The accused had difficulty understanding the concept of a jury but superficially accepted explanations given by Dr Bala and was able to repeat it back to Dr Bala. He would need considerable assistance from counsel in challenging jurors. [In his oral evidence Dr Bala expressed the opinion the accused with assistance of legal counsel would be able to exercise his right to challenge jurors].[68]
(e)The accused was able to follow the course of the trial with legal assistance.
(f)The accused will need assistance in understanding the substantial effect of evidence presented by the prosecution of the trial. This is due to his cognitive issues and demonstrated problems with higher level language, concepts and memory. His cognitive impairments would likely make it difficult for him to understand the communication being presented in court, to be vigilant for errors or inconsistencies and to challenge the testimony of others. Information, including questions put to him, needs to be brief and clear, and questions should not contain more than one concept at a time. Double‑barrelled questions should be avoided. He should be given extra time to formulate his response and he would benefit from explanations from his counsel about anything he does not understand or what is happening in court.
(g)The accused might be able to defend the charge with significant legal assistance from counsel.
[67] Page 7 and 8 of the report, par 22.
[68] ts 77 of 4 February 2019.
Dr Bala made the further observations that the accused may need extra time to confer with counsel. He would need an explanation of legal terms and concepts. He is likely to demonstrate an impaired performance when cross-examined in a manner similar to the police interview where he might give inconsistent and misleading replies, although not deliberately so. He may become confused and distressed. He may have issues with being suggestible or coerced. He can process information and communicate in a simple manner. Hence, he could be found fit to stand trial and enter a not guilty plea. Alternatively, the court may consider him equivocal in terms of fitness and find him unfit to enter such a plea.[69]
[69] Page 9 of report dated 5 September 2018, par 24.
The equivocal nature of the conclusions of Dr Bala were confirmed in a letter to the accused's counsel dated 27 December 2018, wherein he accepted that his opinion was equivocal. This was confirmed by the following questions and answer:[70]
VI.Is it fair to say that from a psychiatric point of view he might be fit for trial but from a neuro-psychological point of view he is not fit for trial?
This may be an elegant summary of the dilemma. From a psychiatric point of view, [the accused] is able to make rational decisions and has reasonable communication skills, which overall, does not render him unfit. However, I have to be mindful that I reviewed him by videoconference, rather than in person, and did not administer any neuropsychological tests. Hence, this limitation on the assessment imposed by the videoconference medium may have led to me missing some important non-verbal aspects of [the accused's] presentation that I may have picked up on in person which may have altered my opinion.
VII.To put it differently, in the case of (the accused), is it fair to say that while your psychiatric opinion appears to be neutral, you are not in a position to overrule or override the conclusions of the neuro-psychologist, who assess (the accused) from a different perspective?
I agree with this proposition. I do not strongly believe that [the accused] is fit to stand trial, rather, that he might be not unfit, and on balance, having reread and re-considered the opinion of the two neuropsychologists, I accede to their consensus opinion that [the accused] is not able to meet all the fitness criteria it is hence unfit to stand trial, likely permanently. This is due to cognitive deficits that impede him being able to properly defend the charge.
[70] Page 2 of addendum report dated 27 December 2018.
In his oral evidence Dr Bala remained equivocal as to whether the accused could follow the course of the trial [criteria 9(e)]. He stated that he would only 'passively' follow the trial. He believed that the accused would require a lot of help from counsel.[71] He would experience difficulties with working memory and concentration. He would also have difficulty making judgments about the evidence being given against him.[72] Also in his oral evidence Dr Bala expressed the opinion that although by himself the accused would have difficulty understanding the substantial effect of evidence presented by the prosecution in the trial [criteria 9(f)], however with the assistance of counsel he might be able to follow the evidence with breaks and time to confer with counsel.[73]
[71] ts 78 of 4 February 2019.
[72] ts 79 of 4 February 2019.
[73] ts 79 of 4 February 2019.
Dr Bala in his oral evidence said that he had changed his opinion and he concluded the accused was not able to properly defend the charge. He stated that he reached this conclusion due to a combination of the neuropsychological deficits of the accused, his memory problems, his inability to regulate internal inconsistencies and his vulnerability to agree to propositions because he was eager to please and was trusting. Dr Bala specifically referred to the accused's confusion over the caution and also his willingness to proceed with the interview albeit that he had been advised that he could contact a lawyer.[74]
[74] ts 81 of 4 February 2019.
Dr Bala also stated that the accused due to his intellectual impairment would suffer a greater memory loss than normally be the case. He thought this memory impairment together with the other psychological deficits meant the accused was unable to recall details and this led to the accused giving what Dr Bala believed to be highly variable or inconsistent accounts in his police interview.[75] Dr Bala believed there was a risk that the accused, to fill in his memory deficiencies, would engage in confabulation, that is, fabricate false memories without being conscious of doing so.[76]
[75] ts 82 of 4 February 2019.
[76] ts 96 ‑ 97 of 4 February 2019.
Conclusion
It is not in dispute the accused suffers from a mental impairment in the form of an intellectual disability. The neuropsychological testing conducted by Dr Vidovich and Dr Moyle places the accused's intellectual functioning in a range between borderline to below average. There were similar deficits in other areas of testing including language, memory and executive functioning.
The core issue in this matter is whether this mental impairment makes the accused unfit to stand trial because he meets at least one of the criteria set out in s 9 of the Act.
(a) Unable to understand the nature of the charge
The charge against the accused is a relatively simple charge. It has two elements:
1.The accused sexually penetrated the complainant (particularised is penetration of the vagina with his penis); and
2.It was without the consent of the complainant.
It is clear from the accused's police interview that the accused has limited understanding of sexual matters. However, I am satisfied that he can adequately understand the concepts of sexual penetration and consent so as to understand the charge in the circumstances of this case. The same conclusion is reached by all three experts.
(b) Unable to understand the requirement to plead to the charge or the effect of a plea
I am satisfied that the accused, with the assistance of counsel, is able to understand the requirement to plead to the charge and that the effect of his plea will be that he is disputing the allegation and a trial take place. This conclusion is consistent with the opinions expressed by the three experts, although Dr Moyle had reservations as to whether the accused would understand the consequences of his plea. However, I am satisfied that the consequences can be explained to him by counsel and the accused will be able to understand the explanation. They are relatively simple concepts.
(c) Unable to understand the purpose of a trial
I am satisfied that the accused is capable of understanding the purpose of the trial. Although I accept the observations of all three experts that the accused's understanding of the purpose of the trial was superficial, I am satisfied that, as he is represented by counsel, that there will be sufficient opportunity for counsel to adequately explain to the accused the purpose of the trial. This is consistent with the opinion of the three experts.
(d) Unable to understand or exercise the right to challenge jurors
Although the accused has obvious limitations in his capacity to understand and exercise the right to challenge jurors, he is represented by counsel. Again, given the time that counsel will have available to explain the process, I am satisfied that the accused is able to understand and exercise the right to challenge through his counsel.
(e) Unable to follow the course of the trial
I reject the opinion of Dr Vidovich and Dr Moyle that the accused is unable to follow the course of the trial. I do not believe that Dr Vidovich and Dr Moyle have a sufficient understanding of the nature of the likely trial, particularly as the evidence of Dr Vidovich and Dr Moyle is that they have never witnessed a full criminal trial. The trial is unlikely to be lengthy, perhaps three days. The issues at trial are likely to be focused on:
1.Where did the sexual penetration admitted by the accused in his police interview occur (was it in the lounge or the bedroom)?
2.Was the complainant asleep at the time?
3.Did the accused make an honest and reasonable mistake the complainant was consenting?
In most trials of this nature the role of the accused is largely passive when represented by counsel up to the point that the accused may choose to give evidence. In terms of following the course of the trial, the accused will have the advantage of an opportunity to discuss the likely evidence of the prosecution witnesses prior to trial, and discuss his response to this evidence. The accused may have the additional benefit of the complainant's evidence being taken at a pre-recording which would mean that he would have an opportunity to consider her evidence and discuss it with counsel, taking as many breaks as necessary and repeating aspects of the evidence as often as is necessary. In order to adequately follow the evidence it is not necessary that the accused appreciates all the nuances of the evidence. He need not see what is or is not a good point to make in relation to his defence.[77] He simply has to understand what is being said by the prosecution witnesses and counsel. My conclusion is consistent with the views expressed by Dr Bala.
(f) Unable to understand the substantial effect of evidence presented by the prosecution in the trial
[77] See R v John M referred to earlier in this decision.
I reject the evidence of the three experts and believe that the accused is able to understand the substantial effect of the evidence presented by the prosecution in the trial. I reach this conclusion for the following reasons:
1.The experts agree that the accused is capable of understanding what is meant by sexual penetration and has a rudimentary understanding of the issue of consent. The evidence of the trial will substantially be focused on these issues.
2.The accused during the course of his police interview was able to understand that it was being alleged that he had sexual intercourse with the complainant in the bedroom while she was asleep. He admitted having sexual intercourse with the complainant but disputed it happened in the bedroom and that she was asleep.
3.The accused will further have the benefit of the assistance of counsel which he did not have during the police interview. There will be opportunities for him to discuss the evidence with counsel. Again, he will have the opportunity prior to trial to discuss the anticipated evidence of the prosecution witnesses. This will be further enhanced if an order is made that the complainant's evidence is pre‑recorded prior to the trial at a special hearing.
I accept that the accused will not have the ability to understand all the nuances of the evidence to the same level as a person of more normal intellect. However, the criteria refers to 'the substantial effect of evidence' and in a case like this the substantial effect of the evidence is relatively simple and I am satisfied the accused will be able to understand it. As pointed out in the decision of Ngatayi v R, the test looks to the capacity of the accused to understand the proceedings, but complete understanding is not necessary as it may require intelligence of quite a high order. As stressed in the authorities, 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.
(g) Unable to properly defend the charge
I reject the opinion of the three experts in relation to this issue. The opinion of Dr Bala remained largely equivocal and only reached a conclusion that the accused was not able to defend the charge out of deference of the opinions expressed by the two neuropsychologists. However, in expressing an opinion as to whether the accused was able to properly defend the charge it must again be kept in mind that neither neuropsychologists had any expertise in what was involved in conducting a criminal defence or the workings of a trial.
It is clear that the accused will suffer some obvious disadvantages as result of his intellectual impairment. This includes his ability to remember details, understand the subtleties of disputed facts, and if he gives evidence, express himself clearly. However, in my opinion it is clear from the police interview that he is capable of understanding questions and giving a response. At one point in the interview he corrected the police officer who wrongly referred to the incident occurring at night.[78] He was able to maintain his version of events despite being questioned at some length about what the complainant and the witness Robert would say contrary to the accused's version. In other words, he was able to resist leading questions.
[78] ts 44 of the visual record of interview.
Although the three experts raised the possibility of confabulation if the accused gave evidence, I am not satisfied this is a significant concern. Dr Vidovich did not observe any specific lengthy confabulations in her assessment of the accused. I conclude that whether there were confabulations when the accused was interviewed by the police is largely speculative.
My firm conclusion having viewed the police interview was that the accused was able to understand the allegations put to him by the police and give an intelligible response. On some details he stated that he did not know and on other matters he gave a clear response. The fact that there may have been inconsistencies in some of his replies is not unusual for accused persons. Likewise, the fact that he became confused and did not immediately understand the caution given to him is not unusual for accused persons. In my opinion such confusion, although relevant, is not in this case persuasive of an inability of the accused to defend himself.
I am satisfied, having seen the police interview, that the accused is capable of conveying intelligible instructions to his counsel as to his defence by informing counsel of the accused's version relating to the substantial facts of the case.[79] If he gives evidence, I am satisfied from the police interview that he is able to understand questions asked of him in the witness box, apply his mind to answering them and giving intelligible answers. His answers may not necessarily be plausible or believable or reliable. Also it is not necessary that he remember all of the matters that might arise in terms of the factual dispute. However, these limitations do not mean that the accused is incapable of defending the charge against him.
[79] R v Presser.
In reaching these conclusions I take into account that this court is well experienced in dealing with witnesses who suffer disadvantages due to age, low intelligence or for other reasons are vulnerable. The court has distributed guidelines to assist counsel with the questioning of such witnesses.[80] Also any questioning of the accused as a witness will be controlled by the trial judge. A judge can ensure that questions are simple and not confusing. Also breaks can be taken so as to ensure the accused does not become unacceptably overwhelmed.
[80] Item 18.1 and 18.2 of the Consolidated Practice Directions and Circulars to Practitioners (Criminal Jurisdiction) 2017.
In my opinion, the experts in this case have given too much emphasis to the limitations created by the accused's intellectual impairment and given insufficient allowance to the accused's capabilities to respond to the allegations as demonstrated in the police interview by the accused forcefully denying the complainant's version and providing an alternative version of what occurred. Also, the experts have failed to give adequate allowance for the assistance counsel will provide to the accused both before the trial commences and during the trial. Further, I do not believe the experts have a sufficient understanding of the trial process, including the passive role generally of accused represented by counsel and the processes undertaken in criminal trials to ensure that the inherent disadvantage suffered by intellectually impaired witnesses and accused is reduced.
For the above reasons I conclude the accused is fit to stand trial.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CG
Associate to Chief Judge Sleight15 MAY 2019
[8] Ngatayi v R [1980] HCA 18; (1980) 147 CLR 1.
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