Adams v DPP

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Case Title: Adams v DPP (No 2) Citation: [2025] ACTCA 3 Hearing Date: 7 November 2024 Decision Date: 29 January 2025 Before: Mossop, Baker and Taylor JJ Decision: The appeal is dismissed. Catchwords: APPEAL – fitness to plead – manslaughter – culpable driving causing death in the alternative to manslaughter – driving a motor vehicle without consent – where accused has major neurocognitive disorder from vehicle collision which lead to charges against her – experts agreed accused unfit to plead under s 311 of the Crimes Act – primary judge determined accused fit to plead – whether fitness to plead is an interlocutory decision – whether primary judge erred by not accepting uncontradicted expert evidence and not taking into account evidence of social workers – whether primary judge afforded procedural fairness in conducting fitness investigation – whether primary judge erred by taking into account availability of witness intermediary – evidence insufficient to rebut presumption of fitness – appeal dismissed Legislation Cited: Crimes Act 1900 (ACT), div 13.2, ss 311, 312, 314, 315A, 316 Evidence Act 2011 (ACT), ss 13(4), 41, 42, 80 Evidence (Miscellaneous Provisions) Act 1991 (ACT), ch 1B, ss 4AE, 4AJ Human Rights Act 2004 (ACT), ss 21, 22 Magistrates Court Act 1930 (ACT), s 90B Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 26 Supreme Court Act 1933 (ACT), ss 37E, 37H Cases Cited: Australian Capital Territory v Crowley [2012] ACTCA 52; 7 ACTLR 142 Bienstein v Bienstein [2003] HCA 7; 195 ALR 225 Browne v Dunn (1893) 6 R 67 Dawson v R [2021] NSWCCA 117; 108 NSWLR 96 DPP v Adams [2024] ACTCA 20 DPP v Adams [2024] ACTSC 181 Eastman v The Queen [2000] HCA 29; 203 CLR 1 Egan v JG [2010] ACTSC 53 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51 Kesavarajah v The Queen [1994] HCA 41; 181 CLR 230 Ngatayi v The Queen [1980] HCA 18; 147 CLR 1 Norris v The King [2023] SASCA 24 Nudd v The Queen [2006] HCA 9; 162 A Crim R 301 Moore (a pseudonym) v R [2024] HCA 30; 98 ALJR 119 R v Bailiff [2010] ACTSC 54; 5 ACTLR 1 R v Bugmy [2009] NSWSC 1215 R v Fisher [2011] ACTSC 56; 210 A Crim R 199 R v Hayles [2018] SASCFC 58; 131 SASR 186 R v House [1986] 2 Qd R 415 R v Mailes [2001] NSWCCA 155; 53 NSWLR 251 R v Presser [1958] VR 45 R v Rivkin [2004] NSWCCA 7; 59 NSWLR 284 R v Stevens [2010] SASCFC 1; 107 SASR 456 R v Taylor (1992) 77 CCC (3d) 551 R v Tuigamala [2007] NSWSC 493 Roberts v R [2023] NSWCCA 187 Sinclair v The King (1946) 73 CLR 316 Subramaniam v The Queen [2004] HCA 51; 211 ALR 1 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 Victors (a pseudonym) v DPP (No 2) [2023] ACTCA 27

Texts Cited: Australian Capital Territory Legislative Assembly, Parliamentary Debates (Hansard) 5 December 2005 D Howard and B Westmore, Crime and Mental Health Law in rd New South Wales (LexisNexis, 3 ed, 2018) Explanatory Statement, Crimes Amendment Bill 2004 (No 4) (ACT) Explanatory Statement, Mental Health (Treatment and Care) Bill 1994 (ACT) Ian Freckleton, ‘Rationality and Flexibility in Assessment of Fitness to Stand Trial’ (1996) 19 International Journal of Law and Psychiatry 39 Parties: Shakira May Adams (Applicant) Director of Public Prosecutions (Respondent) Representation: Counsel J White SC & J Walker (Applicant) V Engel SC & K McCann (Respondent) Solicitors Legal Aid ACT (Applicant) ACT DPP (Respondent) File Number: ACTCA 15 of 2024 Decision Under Appeal: Court/Tribunal: ACT Supreme Court Before: McCallum CJ Date of Decision: 11 June 2024 Case Title: DPP v Adams Citation: [2024] ACTSC 181 THE COURT: Overview

1. The applicant has been charged with one count of manslaughter, one count of driving a motor vehicle without consent and one count of culpable driving causing death (in the alternative to the count of manslaughter). The applicant has also been charged with the summary offences of aggravated dangerous driving and driving a motor vehicle on a public road having never held a drivers licence (repeat offender), each of which have been transferred to the Supreme Court from the Magistrates Court pursuant to s 90B of the Magistrates Court Act 1930 (ACT).

2. These charges arose from a fatal motor vehicle collision that occurred on the evening of 19 May 2022, when the car which the applicant was driving (an allegedly stolen Volkswagen Golf) collided with a Holden Astra being driven by a young man, Mr Matthew McLuckie, who was returning home from work. Mr McLuckie and the applicant were each taken to hospital by ambulance.

3. Shortly after midnight, Mr McLuckie died as a result of injuries which he sustained in the collision. A blood sample taken from the applicant within hours of the collision subsequently tested positive for methylamphetamine, amphetamine and cannabis. The prosecution alleges that, at the time of the collision, the applicant was driving on the wrong side of a main road, at a high speed, of no less than 177km/hr. The evidence in the prosecution case suggests that the applicant was either racing, or being chased, by another car at the time of the collision.

4. The applicant sustained a traumatic brain injury as a result of the collision. The applicant’s legal representatives submit that, as a result of this injury, the applicant is not fit to be tried.

5. On 11 June 2024, following a fitness investigation conducted under div 13.2 of the Crimes Act 1900 (ACT), McCallum CJ (the primary judge) found that the presumption that the applicant is fit to plead had not been rebutted.

6. The applicant seeks leave to appeal (assuming a grant of leave is necessary) on the following grounds: (a) Her Honour erred in finding that it was not established that the applicant is unfit to plead; (b) Her Honour erred in failing to find that the applicant cannot follow the course of proceeding; understand the substantial effect of any evidence that may be given in support of the prosecution; or give instructions to her lawyer; (c) Her Honour erred in finding that there was “no suggestion that the [applicant’s] mental processes are disordered”; (d) Her Honour erred in rejecting the uncontradicted expert evidence of Dr Barker and Professor Greenberg; (e) Her Honour erred in finding that evidence from two social workers involved in the [applicant]’s care “did not take issues much further” because “their evidence was not specific as to the likely course of the trial”; (f) Her Honour erred in the conduct of the investigation pursuant to s 315A of the Crimes Act 1900 (ACT); (i) The parties should have been given notice that the expert evidence would be rejected because it “applied a standard of understanding and analysis that is higher than the standard accepted in the authorities”; (ii) The investigation should have been continued either by giving the parties the opportunity to obtain evidence that did apply that standard or by the court taking steps under s 315A(1)(b); (iii) By conducting the investigation on the basis of inadequate or insufficient evidence, her Honour conducted the investigation on an inter partes basis rather than an inquisitorial basis; and (iv) By conducting the investigation on an inter partes basis, her Honour placed an onus of proof upon the [applicant] and/or the respondent which does not exist in such an investigation; (g) Her Honour took into account extraneous or irrelevant matters: (i) The “possibility that a witness intermediary might be appointed” under s 4AJ of the Evidence (Miscellaneous Provisions) Act 1991 (ACT); (ii) The “availability of the assistance of an intermediary” when assessing the extent of disorder or impairment in respect of the matters stated in s 311(1) of the Crimes Act; and (iii) The absence of evidence from the [applicant]’s lawyers about any difficulty getting instructions from the [applicant]; (h) Her Honour erred when interpreting s 4AJ of the Evidence (Miscellaneous Provisions) Act; (i) The meaning of “witness” used in s 4AJ does not extend to “the accused in any trial” irrespective of whether that accused elects to give evidence; (ii) The functions of a witness intermediary under s 4AJ do not include assisting an accused in respect of the matters stated in s 311(1) of the Crimes Act; (iii) By interpreting Ch 1B of the Evidence (Miscellaneous Provisions) Act so that it interferes with the [applicant]’s common law right to a fair trial; (i) Her Honour erred in having regard to the availability of a witness intermediary because the appointment of an intermediary would be a fundamental irregularity in the trial of the [applicant] giving rise to a substantial miscarriage of justice; (j) Her Honour erred in failing to interpret Ch 1B of the Evidence (Miscellaneous Provisions) Act compatibly with the applicant’s human rights under ss 21 and 22 of the Human Rights Act 2004 (ACT); and (k) Her Honour erred in failing to apply the principle recognised in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 and erred by failing to find that a witness intermediary would be precluded, as an officer of the court, from assisting the applicant in respect of the matter stated in s 311(1) of the Crimes Act because of the Kable principle.

Background

Procedural history

9. On 14 March 2023, a question as to the applicant’s fitness to plead was raised at the applicant’s committal in the Magistrates Court. At that time, the question of fitness was reserved for the consideration of the Supreme Court, in accordance with s 314 of the Crimes Act.

10. At the first return of the proceedings, the Registrar requested that a report concerning the applicant’s fitness to be tried be obtained from ACT Health. In compliance with that request, Dr Anthony Barker, a consultant forensic psychiatrist, provided a report to the Court dated 14 June 2023. In that report, Dr Barker expressed doubts about the applicant’s fitness to plead, but did not ultimately express a final opinion on this issue.

11. The prosecution then sought a second opinion from Professor David Greenberg. Professor Greenberg provided a report dated 18 October 2023, which expressed the opinion that the applicant was not fit to stand trial.

12. On 22 November 2023, the proceedings were listed before the primary judge for an investigation into the applicant’s fitness to plead. The applicant was represented by Dr De Bruin, who informed the Court that he was instructed by the ACT Public Trustee and Guardian.

13. The prosecutor tendered a bundle of documents, which included the reports of Dr Barker and Professor Greenberg, the indictment, the Crown Case Statement, and other court records. The prosecutor also provided the Court with written submissions of the then Acting Director of Public Prosecutions, in which the Acting Director “reluctantly” conceded that the applicant was not fit to be tried.

14. After considering these reports and the submissions, the primary judge expressed the preliminary view that the expert reports did not appear sufficient to rebut the presumption of fitness. Whilst acknowledging that “neither party bears an onus of proof on the issue of fitness”, her Honour also observed that there was an absence of evidence from any person more familiar with the applicant than the two expert witnesses, and the absence of any evidence from the applicant’s legal representatives regarding any difficulties in obtaining instructions.

15. However, the primary judge noted that because of the Acting Director’s concession in his written submissions, the applicant’s legal representative had not had an opportunity to respond to these concerns. Her Honour proposed to provide the parties with an opportunity to do so.

16. The primary judge then adjourned the hearing of the investigation. The investigation subsequently resumed before the primary judge on 13 May 2024.

The evidence before the primary judge on 13 May 2024 Overview

17. In addition to the evidence adduced on 22 November 2023, the following evidence was adduced in the proceedings on 13 May 2024: (a) Two statements of the applicant’s social workers, each dated 19 February 2024; (b) Two USB sticks, containing videos of the applicant interacting with police (in a bail compliance check and a police attendance at the applicant’s address), both of which had been provided to Professor Greenberg; and (c) A joint expert report of Dr Barker and Professor Greenberg, dated 20 March 2024.

18. Professor Greenberg and Dr Barker also gave concurrent evidence at the hearing.

19. In view of the importance of this evidence for the issues on the appeal, it is necessary to set out this evidence, and the evidence tendered on 22 November 2023, in some detail.

Medical history post-incident

20. The applicant’s medical history was set out in the reports of Professor Greenberg and Dr Barker. It is convenient to briefly summarise this history before turning to the experts’ opinions.

21. The applicant was admitted to the Emergency Department of the Canberra Hospital for “immediate acute management” after sustaining a traumatic brain injury (TBI) on 19 May 2022. The applicant had post-traumatic amnesia for 145 days following the collision. On 28 August 2022, consultant liaison psychiatrist Dr Barnes diagnosed the applicant with “psychosis secondary to traumatic brain injury”, having witnessed the applicant’s increasingly paranoid behaviour and agitation in the preceding two-week period.

22. The applicant was transferred to Liverpool Brain Injury Rehabilitation Unit on 26 September 2022. On 18 October 2022, a CT scan taken of the applicant’s brain “demonstrated bilateral frontal and left temporal white matter hypodensity, in keeping with provided history of a traumatic brain injury”.

23. On 8 November 2022, the applicant was diagnosed as having a severe traumatic brain injury, traumatic sub-arachnoid haemorrhage (SAH) and diffuse axonal injury. While at the Canberra Hospital, the applicant was placed under the care of the ACT Public Trustee and Guardian.

24. In his report dated 18 October 2023, Dr Greenberg referred to a report prepared by an occupational therapist, Ms Bell, dated 21 November 2022, recorded that the applicant “communicates verbally and can express her daily wants and needs”, and that she could “follow instructions of 1-2 steps, however, will become quickly frustrated when the instruction is too difficult for her to engage in”. Ms Bell stated the applicant “digresses with short-attention spans” and had “significant difficulties in expressing what is on her mind”.

25. Dr Greenberg also referred to the report of Ms Lilian Anderson, Speech Pathologist, dated 2 December 2022. Ms Anderson observed that it was likely that the applicant had difficulties with communicating her ideas, needs and/or wants, as well as with planning, sequencing and organising her thought processes. Ms Anderson also recorded that the applicant struggled with solving problems in everyday tasks and social situations.

26. The applicant was discharged from hospital five months after the collision with diagnoses of a traumatic brain injury, as well as various injuries including to her cervical spine, lumbar spine, left shoulder, right and left clavicular, lungs, stomach, knee and femur bone.

27. The applicant is presently on the National Disability Insurance Scheme (NDIS) and lives in full time supported residential accommodation. She remains under the subject to a Guardianship Order.

Neurological assessment of Ms Harrison

28. The applicant was assessed by Ms Harrison, a clinical neuropsychologist approximately 6 months after the applicant sustained her brain injury. Following that assessment, Ms Harrison prepared an assessment report, dated 25 November 2022. That report was not in evidence before the primary judge, or before this Court. However, extensive reference was made to Ms Harrison’s report in the reports of both Dr Barker and Professor Greenberg.

29. Ms Harrison reached the following conclusions in her report: … Against a background of borderline to low average pre-injury intellectual functioning, current assessment revealed a pattern of severe, global cognitive compromise. She demonstrated relatively intact basic attention and working memory but had substantial difficulties in all other areas assessed. Her speed of information processing was extremely slow and this is evident qualitatively as well as on testing. She was essentially unable to learn and remember new information. All aspects of memory were impacted including encoding, rate of forgetting and retrieval with little benefit from repetition or cues and prompts to support retrieval. She also demonstrated broad based executive dysfunction encompassing reasoning, planning and problem solving with poor cognitive flexibility and a tendency to be impulsive. Self-monitoring and insight were impaired. Behaviourally, Ms Adams presents as distractible, disinhibited, impulsive and has poor frustration tolerance. These findings are consistent with [Ms] Adam’s history of extremely severe TBI, occurring against a background of substantial childhood trauma, substance use and below average preinjury intellectual abilities. While some small, gradual gains may be seen over the next year or two associated with natural recovery, Ms Adams is expected to have severe and permanent cognitive dysfunction. Statements of Social Workers

30. In her statement dated 16 February 2024, Ms Curry explained that she met the applicant in the middle of 2023, when Ms Curry was assisting the applicant to transition between social workers.

31. Ms Curry stated that “problem solving was a difficulty for [the applicant]”. She said that whilst the applicant “was not able to problem solve without help from a carer or support worker”, with support, the applicant could “break down the steps needed to complete a task”.

32. Ms Curry believed that the applicant’s “capacity and cognitive ability to talk about how she is feeling” was at a primary school level. She said that the applicant struggled to take initiative and needed help with basic tasks such as brushing her teeth and getting dressed. She required prompting to recall how to get to the laundry room and how to use the laundry machine.

33. Ms Curry stated that the applicant was only able to concentrate for about fifteen to twenty minutes in ward team meetings. The content of the meetings would need to be explained over multiple sessions and occasions.

Report of Dr Barker

40. Dr Barker conducted an in-person psychiatric assessment of Ms Adams on 22 May 2023. He was provided with the request for a Fitness to Plead Report, the Statement of Facts, the applicant’s ACT Criminal History and her electronic mental health record (which included the report of Ms Harrison, referred to above).

41. Dr Barker described the applicant’s current presentation as “cooperative and appropriate”. However, he stated that the applicant “tended to become distracted relatively easily and became visibly fatigued as the interview progressed”. He noted that towards the end of the interview, she would occasionally nod her head to questions posed to her, however, would “then be unable to explain what she had been asked, particularly if the questions were lengthy or complex”.

42. In relation to the applicant’s capacity to understand the nature of the charges, Dr Barker recorded: … Ms Adams stated that a charge of Culpable Driving of Motor Vehicle Causing Death meant that a person had “killed someone”. When asked about a charge of manslaughter, she stated “Didn’t the other guy die? … That’s really sad. That’s really, really sad. I shouldn’t have been driving … he’s gone. His poor family”. When asked about the charge of Ride/Drive Motor Vehicle Without Consent, Ms Adams stated “It was a stolen car … they’re trying to say I stole it … I never stole it, I bought it. I bought it for ball of Ice”.

43. Dr Barker recorded the following responses from the applicant in relation to her capacity to enter a plea to the charge and exercise the right to challenge jurors or the jury: Ms Adams stated that if a person were to enter a guilty plea then “they’re guilty for what they did … so you did what you did”. She stated that if a person were to enter a plea of not guilty “then you’re not guilty for what you did … well you didn’t mean to do what you did. You didn’t mean to kill someone”. Ms Adams was initially unfamiliar with the concept of challenging jurors or the jury. Once this was explained to her, she stated “I think, I’m not too sure”. She acknowledged that she felt comfortable with her lawyer undertaking this on her behalf if required.

44. As to the applicant’s capacity to understand that the proceeding is an inquiry about whether she committed the offence, Dr Barker recorded: Ms Adams stated that the purpose of the proceeding was “to see if I’m guilty”. When asked as to how this might occur Ms Adams stated “I don’t know much about it, I don’t have no clue”.

45. As to the applicant’s capacity to follow the course of the proceeding, Dr Barker recorded: When asked if she felt able to follow the course of the proceeding, Ms Adams stated “I’ll try”. When asked further if she can follow what the lawyers in Court were saying, she stated “Yeah, when they’re talking to me”. However, she stated that if people in Court were not talking to her then “I don’t listen, cause it’s none of my business”. She also reported that she experienced difficulty recalling what was discussed in Court, stating “My memory is not there, it’s gone”.

Report of Professor Greenberg

53. Professor Greenberg conducted an in-person assessment of the applicant at her residence on 27 September 2023. He was provided with the indictment and prosecution case statement, the prosecution brief of evidence, the report of Dr Barker and the applicant’s medical records from the University of Canberra Rehabilitation Hospital.

54. Professor Greenberg stated that the applicant was “cooperative and cheerful during the psychiatric assessment which was conducted over a period of 2 ¼ hours”. The applicant was alert during the interview, but “constantly yawned and at times lay supine on the couch”. She was offered breaks, however, she wanted to complete the interview so she could go about her daily activities. Professor Greenberg stated that “at times [the applicant] would digress from the topic and recall unrelated information”. She required “constant reassurance” to complete the interview and “displayed evidence of disinhibited behaviour”, including swearing and threats of violence.

55. Professor Greenberg assessed the applicant with the Australian version of the Addenbrooke’s Cognitive Examination (a brief cognitive test designed to assist clinicians in making a diagnosis). Professor Greenberg noted the applicant performed satisfactorily for orientation and registration, but had difficulties with attention and concentration. She struggled with general knowledge questions such as naming the current Australian Prime Minister and the current USA President. At the end of the testing, she could not recall any information she had been asked to memorise. The applicant needed explanations to understand more complex words such as monarchy, marsupials and nautical. Her total score on the Addenbrooke’s Cognitive Examination was 61/100, which was “an indication of significant cognitive impairment, even with adjustment for her low average intelligence, drug use and learning problems/ limited education”.

56. Professor Greenberg then addressed the statutory criteria for fitness to plead. Professor Greenberg accepted that the applicant met the criterion of being able to “understand the nature of the charges”. In particular, Professor Greenberg observed that the applicant knew police charged her with “manslaughter for killing someone”, and for being “unlicenced” and “driving recklessly”. He said that the applicant was not familiar with the technical legal terms of her charges, but knew she had been driving at 177km/hr, that she had had a car accident and “killed someone” called “Matthew Luckie” [as written]. She knew the person chasing her and recalled that she was driving a silver Volkswagen.

57. Professor Greenberg concluded: [The applicant] does however understand in a general sense what she’s been charged with and the serious nature of these charges. She is aware of the nature of the charges and the potential consequences of these charges should she be convicted. She generally is aware what the police are alleging and claimed she was told this information by her family. In my view, it indicted she had an ability to learn new information, at least to some degree. I considered the fact that she allegedly has no recall of the alleged offences, does not in itself render a person unfit to stand trial.

Joint expert report

66. In preparation for their joint report, Professor Greenberg and Dr Barker were also provided with additional material, including statements of the applicant’s social workers and a Procedural Guidance Manual regarding the use of witness intermediaries in the ACT.

67. Professor Greenberg and Dr Barker agreed that the applicant qualified for the diagnoses of a major cognitive disorder due to severe traumatic brain injury with current moderate to severe severity, and a historical diagnosis of substance use disorder. The experts also agreed that the applicant likely qualified for having pre-existing or underlying Cluster B personality problems.

68. The experts agreed that the applicant “does understand in a general sense what she’s been charged with and generally is aware what the police are alleging”, and that she understands a plea of guilty and not guilty, as well as the general consequences of these pleas. The experts also agreed the applicant does not understand how to exercise her right to challenge the jurors or the jury.

69. The experts were of the unanimous view that the applicant “would have a diminished capacity to follow the course of the proceedings”. They explained: In our view, she would have difficulty following the proceedings due to her impaired attention span, distractibility, emotional dysregulation, behavioural disinhibition, poor ability to learn new information, impaired memory, and her slow speed of mentally processing information. In our view, even with specific accommodations such as additional support, more frequent breaks, avoiding legal jargon, slowing the pace of the proceedings, Ms Adams would not currently meet the threshold for following the course of the proceedings. However, we agreed, if her criminal proceedings were very limited, legally uncomplicated and of brief duration, such as her pleading guilty and there being a brief sentencing hearing, then with additional supports and assistance she could in a rudimentary sense follow the course of the proceedings.

70. The experts also agreed that the applicant could not understand the substantial effect of any evidence given in court due to her short attention-span and prevailing labile mood.

71. The experts were both of the view that the applicant could not currently instruct her lawyer, stating “she likely has the capacity to give simple instructions but with more complex sequential material, she is unable to digest, collate, and synthesise information to provide meaningful instructions to her legal counsel”.

72. Professor Greenberg considered that the applicant could not adequately respond to questions during evidence-in-chief due to her brain damage. In contrast, Dr Barker believed that the applicant could probably tolerate evidence-in-chief with “appropriate planning and questioning from her lawyer”. Both agreed she could not withstand cross-examination due to her slow information processing and impairments of learning and remembering new information.

The experts’ evidence in court

75. Dr Barker and Professor Greenberg gave concurrent evidence before the primary judge at the hearing on 13 May 2024.

76. Dr Barker gave evidence that the applicant would probably be unfit to plead and “would experience significant challenges through the sort of trial that would be expected with charges of this nature”, notwithstanding the presence of appropriate supports.

77. However, when questioned by the prosecutor about what would be involved in a trial for these charges, he replied: So probably - look, in all honesty, you’re probably in a better place to answer that than I am. However, you know, that there would be - there would be witnesses that would be called, there would be evidence that would be led, there would - there would be all sorts of evidence that might be led. There might [sic] technical forensic evidence, say, relating to - to speed of vehicles, and so on. There might be particular witnesses that might be involved with the alleged perpetrator or the alleged victim that might give their account of what’s going on, and that the alleged perpetrator would need to sit through that trial process, and to develop an understanding of what was happening, and then make connections between the evidence that was presented to determine whether or not they agreed with that evidence, or they disagreed, and there were any instructions, accordingly, that they needed to provide to their legal representative.

78. Professor Greenberg and Dr Barker confirmed that they were each of the opinion that the applicant understood the nature of the charges.

79. Dr Barker gave evidence that he “wasn’t completely satisfied that [the applicant would] be able to challenge jurors or the jury”. However, if the applicant were adequately represented, he believed “her legal representation would be sufficient to assist her through that process to the same extent as any other accused in a trial”. He considered that the applicant would be able to form a preference as to a potential juror, but was “less certain” about “whether or not she would actually exercise that [right] and convey [that] to her legal representative”. He clarified that the applicant would be able to give instructions to her counsel if the process was slowed down and the applicant was asked “yay or nay” in respect of each proposed juror, although he suspected that the applicant would probably acquiesce to her barrister’s recommendation.

80. Professor Greenberg was of the view that the applicant would likely not be able to challenge potential jurors. He noted that he couldn’t get the applicant to retain information about her rights to challenge jurors “even though [he] spent two and a half hours with her”.

81. As to the applicant’s ability to follow the proceedings, Dr Barker considered that the applicant could respond to questions that her lawyers asked her. He was further of the view that the applicant would be able to understand if a lawyer were to speak to her about what a witness is saying in court. However, he emphasised that breaks would need to be frequent, and that as the trial progressed, her ability to follow proceedings would become “less and less”, to the point where after a few days she may not “be able to attend effectively, at all”.

The primary judge’s fitness decision

100. On 11 June 2024, the primary judge delivered a judgment in which her Honour held that it had not been established that the applicant is unfit to be tried. The findings which her Honour made in reaching this conclusion are set out below.

The availability of a witness intermediary

101. After setting out the legislation and authorities relating to fitness to plead, the primary judge considered whether the question of the applicant’s fitness to plead should be determined having regard to the possibility that a witness intermediary might be appointed for her under the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act): DPP v Adams [2024] ACTSC 181 [14] – [26] (Primary Judgment).

102. Senior Counsel for the applicant submitted that a witness intermediary may only be appointed after an accused has indicated an intention to give evidence. The primary judge rejected this contention as inconsistent with both the text and legislative history of the relevant provisions of the EMP Act. Her Honour accordingly identified the question to be determined as whether the applicant has the ability “to follow the course of the proceeding, understand the substantial effect of any evidence that may be given in support of the prosecution and give instructions assisted by counsel and having regard to the availability of the assistance of an intermediary”: Primary Judgment at [26] (emphasis in original).

The expert evidence

103. The primary judge then summarised the procedural history of the proceedings, in particular, noting that she had previously indicated to the parties that the material that had initially been presented “did not appear sufficient to rebut the presumption of fitness”, and that no evidence had been presented from any persons more familiar with the applicant than the two expert witnesses: Primary Judgment at [31]. Her Honour noted that she had adjourned the proceedings to give the parties an opportunity to address these concerns.

104. The primary judge noted that a joint expert report, statements of two social workers, and body worn footage had been tendered by the parties following that adjournment. The primary judge found the statements of the social workers “did not take the issues much further”, as while their experience of the applicant was consistent with her diagnosis of major cognitive impairment disorder, it “was not specific as to the likely course of a trial or the test in s 311”: Primary Judgment at [32]. The primary judge considered that the USB footage demonstrated that the applicant has the capacity to recall past events, but that the evidence was otherwise “not particularly helpful” and that she had “not given [the footage] any great weight”: Primary Judgment at [33].

Section 311 of the Crimes Act

105. After summarising the expert evidence, the primary judge turned to the specific criteria under s 311 of the Crimes Act. Her Honour accepted the applicant’s diagnosis of “major neurocognitive disorder”, and noted that whilst there was evidence that the applicant’s mental processes were “impaired”, there was no clear evidence her mental processes were “disordered”: Primary Judgment at [46]. Her Honour identified the “ultimate question” as being “whether the impairment of [the applicant’s] mental processes is established to be to the extent that she cannot do any of the six things to the standard appropriate to ensure a fair trial”: Primary Judgment at [47] (emphasis in original).

106. As to the particular criteria under s 311 of the Crimes Act, the primary judge found that it was not established on the evidence that the applicant could not understand the nature of the charges (s 311(1)(a)), that it was not established that the applicant did not have the capacity to enter a plea or to exercise the right to challenge jurors or the jury (s 311(1)(b)), and that it was not established that the applicant could not understand the proceeding is an inquiry about whether she committed the offence (s 311(1)(c)): Primary Judgment at [49] – [61].

107. The primary judge then addressed the experts’ conclusions concerning the criteria set out in s 311(1)(d), (e) and (f) of the Crimes Act (that is, capacity to follow the course of the proceeding, to understand the substantial effect of the evidence in the prosecution case, and to provide instructions to her lawyer). The primary judge stated that as the opinions of the psychiatrists on these issues were agreed and uncontradicted, they “plainly warrant respectful consideration”, but added that, “to the extent that [the experts] strayed beyond their expertise, their opinions are unhelpful to the court”: Primary Judgment at [65].

108. The primary judge then continued (at [68] – [70], citations omitted, emphasis added): … psychiatrists are not experts in criminal proceedings. There is a significant difference between the task undertaken by a psychiatrist in forming a diagnosis based on the medical history and in accordance with the criteria stated in DSM 5 and a psychiatrist forming what is essentially a predictive opinion as to an accused person’s ability to follow the course of a process that is unfamiliar to the psychiatrist. It may be accepted that, in the absence of any compelling reasons to reject the medical evidence, the Court should accept it. The question is what that evidence establishes. The diagnoses of major cognitive disorder cannot be doubted. However, an accused person is not necessarily to be taken to be unfit to plead because they qualify for that diagnosis. The significance of the diagnosis must be assessed in the context of the Court’s distinct legal expertise in the nature of criminal proceedings. The difficulty I have with the opinions of the experts in the present case is that, in my assessment, they have applied a standard of understanding and analysis that is higher than the standard accepted in the authorities for determining fitness to plead discussed at the outset of this judgment. This is not a case where, for example, the accused’s ability to follow the evidence is impaired by psychosis or dementia so that she will have no understanding of it or will only be able to process it in a disordered way. (emphasis added) The applicant’s capacity to follow the course of the proceedings (s 311(d))

The applicant’s capacity to give instructions (s 311(f))

115. The primary judge noted that the experts agreed that the applicant could not instruct her lawyer during a trial as a result of her cognitive and behavioural impairments sustained during the traumatic brain injury. However, her Honour continued: The difficulty with the experts’ opinions on this issue is that it is hypothetical. As already noted, there is no evidence before me that Ms Adams’s lawyers have in fact encountered any difficulty obtaining instructions from her. Her exchanges with Dr Barker suggest that she may well be able to provide instructions as to the allegations against her, to the extent that she has any recollection of the events in question. To the extent that her memory fails her, that is irrelevant to the test of fitness to plead. In my assessment, it is not established that Ms Adams cannot instruct her lawyers. Conclusion

116. Accordingly, the primary judge was not persuaded that the presumption of fitness was rebutted, and made a declaration that it was “not established that the accused is unfit to plead”.

The Notice of Appeal

117. On 18 June 2024, the applicant’s solicitor attempted to file a Notice of Appeal and an application for a stay of proceedings with the Registry. However, the Registry refused to file the Notice of Appeal, on the basis that the primary judge’s decision regarding the applicant’s fitness to plead was an interlocutory decision, such that the applicant first needed to seek leave to appeal.

118. On 8 July 2024, the proceedings were listed before Elkaim AJ for consideration of the issue of whether the primary judge’s decision was interlocutory or final, and whether, if leave to appeal were required, such leave should be granted. Acting Justice Elkaim referred this issue (and the question of whether leave to appeal should be granted) to the Full Court to be determined with the appeal, noting this course of action would be “most favourable in terms of expedition and expediency”: DPP v Adams [2024] ACTCA 20 at [9]. The reference in Elkaim AJ’s order to “the Full Court” should be understood as being a reference to the Court of Appeal constituted by three judges under s 37H of the Supreme Court Act 1933 (ACT).

Whether leave to appeal is required, and if required, whether leave to appeal should be granted

119. Section 37E of the Supreme Court Act provides that “an appeal may be brought against an interlocutory order of the court constituted by a single judge only with leave of the Court of Appeal”.

120. The applicant’s Senior Counsel contended that the applicant did not require leave to appeal because a determination that an applicant is fit to be tried is not interlocutory in nature. The Director of Public Prosecutions (the Director) contended that the determination is interlocutory in character, and that leave to appeal is required.

121. This issue may be briefly disposed of. It was common ground that the correct test to be applied is that set out by the High Court in Bienstein v Bienstein [2003] HCA 7; 195 ALR 225 at [25]: The usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties. The test requires the appellate court to look at the consequences of the order itself and to ask whether it finally determines the rights of the parties in a principal cause pending between them. Accordingly, orders refusing to set aside a default judgment or refusing to grant an extension of time are not final judgments because the unsuccessful party could make a further application for the same relief, even though such an application might have very little prospect of success. (citations omitted)

122. The application of these principles compels the conclusion that a determination as to fitness is interlocutory in nature. The primary judge’s determination that the applicant is fit to be tried is a determination that can be revisited at any future time in the proceedings. It follows that the proceedings are interlocutory in nature.

123. Whether or not proceedings are interlocutory is not determined by the seriousness of the consequences of the determination. For example, a decision refusing an application for a permanent stay is interlocutory in character, notwithstanding that the basis for seeking the stay may go to fundamental questions of fairness to the accused: Dawson v R [2021] NSWCCA 117; 108 NSWLR 96 at [37].

124. The applicant’s proposition that the determination of fitness to plead involves “a right which stands outside the adversarial process of the trial itself” may be accepted: see Eastman v The Queen [2000] HCA 29; 203 CLR 1 at [294] (Hayne J). However, the fact that the charges remain extant (in the sense that no verdict has been rendered) is not determinative of the character of the determination. It has no impact upon the ability of the applicant’s legal representatives to seek to have the question of fitness raised again in the future.

125. Nonetheless, although the matters raised on behalf of the applicant do not support her contention that the determination is interlocutory in character, those matters, in particular, the seriousness of the consequences of the determination, strongly support her submission that leave to appeal should be granted.

Legislation and principles concerning an accused’s fitness to plead

127. The presumption that a person is fit to plead is set out in s 312 of the Crimes Act, as follows: 312 Presumption of fitness to plead, standard of proof etc (1) A person is presumed to be fit to plead. (2) The presumption is rebutted only if it is established, on an investigation under this division, that the person is unfit to plead. (3) The question of a person’s fitness to plead— (a) is a question of fact; and (b) is to be decided on the balance of probabilities. (4) No party bears a burden of proof in relation to the question.

128. Section 311 of the Crimes Act provides as follows concerning the determination of when a person is unfit to plead: 311 When a person is unfit to plead (1) A person is unfit to plead to a charge if the person’s mental processes are disordered or impaired to the extent that the person cannot— (a) understand the nature of the charge; or (b) enter a plea to the charge and exercise the right to challenge jurors or the jury; or (c) understand that the proceeding is an inquiry about whether the person committed the offence; or (d) follow the course of the proceeding; or (e) understand the substantial effect of any evidence that may be given in support of the prosecution; or (f) give instructions to the person’s lawyer. (2) A person is not unfit to plead only because the person is suffering from memory loss.

129. The criteria set out s 311 of the Crimes Act are derived from the test set out in R v Presser 1 [1958] VR 45 at 48, and affirmed by the High Court in Kesavarajah v The Queen [1994] HCA 41; 181 CLR 230 at 245: see Explanatory Statement, Mental Health (Treatment and Care) Bill 1994 (ACT). The purpose of the Presser test is to ensure that a trial is not “rendered unfair by reason of a defendant’s inability to participate in the trial in an appropriate manner”: Norris v The King [2023] SASCA 24 at [15]. This purpose is also reinforced in the ACT in ss 21 and 22 of the Human Rights Act 2004 (ACT).

130. Section 311 refers to an accused’s “fitness to plead”, rather than an accused’s “fitness to be tried”; cf s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). An accused person may be fit to provide instructions to enter a plea of guilty or not guilty, even though the accused is otherwise not fit to stand trial: see further D Howard and B Westmore, Crime and Mental Health Law in New South Wales rd (LexisNexis, 3 ed, 2018) at [5.5]. It is clear from the matters listed in s 311(1) that s 311 is concerned not only with the capacity of an accused to enter a plea, but also with the capacity of the accused to stand trial.

131. Application of the criteria set out in s 311 of the Crimes Act “involves a judgment which will almost invariably involve issues of degree”: Roberts v R [2023] NSWCCA 187 at [88]. Some matters which may be relevant to the determination of fitness in individual cases will include: (a) The complexity of the charges (some charges are more complicated to understand than others): R v Stevens [2010] SASCFC 1; 107 SASR 456 at 468 [57]; R v Hayles [2018] SASCFC 58; 131 SASR 186 at [40]; (b) The length of the trial (“There is simply no point in embarking on a lengthy trial with all of the expense and inconvenience to jurors that it may entail if it is to be interrupted by reason of some manifestation or exacerbation of a debilitating

1 The Presser test in turn derives from English authority dating back to 1836: see R v Mailes [2001] NSWCCA 155; 53 NSWLR 251 at 273 [112]ff. condition which can affect the accused’s fitness to be tried”): Kesavarajah at 246; (c) Whether the accused is represented by counsel: Ngatayi v The Queen [1980] HCA 18; 147 CLR 1 at 9; (d) Whether other steps can reasonably be taken to accommodate the accused: Kesavarajah at 246. Such steps may include adjourning the proceedings, one-on-one assistance, insistence on brief, clear questions to the accused if he or she is examined on oath, and/ or providing an opportunity for the accused to narrate his or her version of events without interruption (as to the latter, see ss 41 and 42 of the Evidence Act 2011 (ACT) and Norris at [52]); and (e) That the disorder or impairment of an accused will disrupt the flow of the trial does not make the person unfit to plead: R v Taylor (1992) 77 CCC (3d) 551 at 564–5, cited in Eastman at [26] (Gleeson CJ).

132. It has long been recognised that a literal application of the fitness test would require intelligence of a “quite a high order”, which would not be met by many accused who come before the courts: Kesavarajah at 244–5, citing Sinclair v The King (1946) 73 CLR 316 at 334 and Ngatayi at 8. For this reason, it has been held that the test needs to be applied “in a reasonable and commonsense fashion” and not in any “over-literal sense”: Kesavarajah at 244; Ngatayi at 8; Presser at 48. So applied, the fitness test encapsulated in s 311 of the Crimes Act and like provisions may not be “very difficult” to satisfy: Eastman at [298] (Hayne J).

133. The fitness test is directed to the “minimum requirements for a fair trial”: Kesavarajah at 245; R v Rivkin [2004] NSWCCA 7; 59 NSWLR 284 at [298]; Hayles at [31]; Presser at 48. The test is concerned with an accused’s comprehension rather than skill: Eastman at [22] (Gleeson CJ). The accused “need not have sufficient capacity to make an able defence or to act wisely or in his own best interest” Ngatayi at 8; see also Taylor at 564– 5, cited in Eastman at [26] (Gleeson CJ). An accused will not be unfit simply because the accused “does not know, and cannot understand, the law”, provided that, with the assistance of counsel, they are able to make a proper defence: Ngatayi at 9.

134. In order to be found unfit to be tried, an accused must be “entirely unable to follow the evidence or the course of the proceedings”: Hayles at [31(v)]. It is not necessary that the accused have a “complete understanding” of the proceedings, that the accused be “capable of following the complexities of legal argument”, or that the accused be capable of following “difficult to understand aspect[s] of the evidence” for an accused to be fit to be tried: Hayles at [31(iv)].

135. Nor is it necessary for the accused to comprehend “counsel’s comparison and analysis of the evidence, either at all, or for the purpose of making decisions about [their] defence of the proceedings”: Hayles at [35]; see also R v House [1986] 2 Qd R 415 at 422. Forensic or tactical decision making during the course of the trial “is the province of counsel”: Hayles at [39], citing Nudd v The Queen [2006] HCA 9; 162 A Crim R 301 at [9]. All that is required is that “the accused is able to understand the substantial effect of the evidence that is given and to provide [their] counsel with instructions in relation to that evidence”: Hayles at [39] (emphasis added).

136. It is usual for expert evidence to be given from psychiatrists on the question of an accused’s fitness. Both the importance, and the limitations, of such evidence must be firmly borne in mind. As the New South Wales Court of Criminal Appeal recently observed in Roberts at [88]: … Experts are capable of throwing light on the nature of the impairments and how those would or may have affected the accused. They may also express a view on the relevant criteria and on the ultimate issue of fitness: Evidence Act 1995 (NSW), s 80(a). But their evidence is more likely to be helpful as regards addressing the nature and effects of the impairments than on the ultimate question of fitness. That is so both because the ultimate question is one on which the court must reach its own conclusion and because the issue involves legal nuance. As Smith J said in Presser itself (at 46). … the question of fitness to be tried is one which can hardly be answered without a fairly detailed understanding of the rules of law which have to be applied in determining that question. The doctors may or may not be fully conversant with those rules.

Determination

Outline

142. It is convenient to consider the grounds of appeal which allege specific error in the Primary Judgment (grounds (c) – (f)), before turning to a consideration of grounds (a) and (b), which are concerned with the correctness of the primary judge’s ultimate conclusion.

Her Honour erred in finding that there was “no suggestion that the [applicant’s] mental processes are disordered” (Ground (c))

143. Ground (c) relates to the following holding of the primary judge: The section refers to mental processes that are “disordered” or “impaired”. There was no suggestion that Ms Adams’s mental processes are disordered. However, there was clear evidence that her mental processes are impaired in that, as a result of the very collision that has given rise to the charges against her, she has suffered traumatic brain injury as a result of which she has a diagnosed ‘major neurocognitive disorder’. Primary Judgment at [46].

144. Contrary to the submissions made on behalf of the applicant, the words “disordered or impaired” in s 311 do not form a “composite phrase”. Read in context, “disordered” mental processes refer to mental processes which lack order or are confused, whereas “impaired” mental processes describe mental processes which are otherwise damaged or lacking. Broadly speaking, the former frequently arise from mental illnesses, particularly psychotic illnesses, whereas the latter often arise from cognitive deficiencies and intellectual impairments. Whilst in some cases, an accused’s mental processes may be both impaired and disordered, this need not be so for the provision to be enlivened. Section 311 is engaged where the accused’s mental processes are disordered or impaired to the extent prescribed.

145. Although the applicant had been diagnosed as suffering from a “disorder” (namely a “Major Neurocognitive Disorder”), the primary judge was correct to observe that there was no suggestion in the evidence that her present mental processes are disordered, in the sense of being confused. In particular, there is no evidence of any continuation of the paranoia observed in August 2022.

146. As the primary judge also observed, there was no dispute that the applicant’s mental processes were “impaired” as a result of her traumatic brain injury; the real issue in the proceedings was whether the applicant’s mental processes were impaired “to the extent” required by s 311.

147. This ground of appeal should be dismissed.

Expert evidence (Ground (d))

148. In ground (d), it is contended that the primary judge erred in rejecting the uncontradicted expert evidence of Dr Barker and Professor Greenberg.

149. A number of the applicant’s submissions under this ground of appeal are predicated on misunderstandings of various findings of the primary judge. In particular: (a) The primary judge did not “reject” the expert evidence. Her Honour expressly accepted the diagnoses of both experts, observing that “the diagnoses of major neurocognitive disorder cannot be doubted”: Primary Judgment at [69]. (b) The primary judge did not hold that the experts were “precluded from expressing an opinion on the matters set out in s 311”. The expert evidence was admitted into evidence, without objection from either the prosecution, or demurrer by the Court. (c) The primary judge did not reject the expert evidence because it was “predictive”. In stating that there is a “significant difference” between a psychiatrist forming a clinical diagnosis in accordance with the criteria stated in DSM 5, and a psychiatrist forming “what is essentially a predictive opinion” about the ability of an accused person to follow the proceedings, the primary judge was simply expanding upon her (uncontentious) observation that “psychiatrists are not experts in criminal proceedings”: Primary Judgment at [68]. The understanding (or lack thereof) of the experts as to the demands of the particular trial was highly relevant to the determination of the weight to be given to their opinions as to the applicant’s fitness to be tried: see similarly Roberts at [88], cited above at [136]. (d) In stating that the “difficulty with the experts’ opinions [that the applicant did not have the capacity to give instructions to her lawyers] is that it is hypothetical” (Primary Judgment at [85]), the primary judge was not rejecting the experts’ opinion on the basis that they were “hypothetical”. The primary judge was simply observing that there was no evidence that the applicant could not give instructions, and indeed, there was evidence that suggested otherwise (such as the evidence of the experts in the joint report that the applicant “has the capacity to give simple instructions”, including, importantly, the capacity to give instructions as to whether to enter a plea of guilty or not guilty to the charges).

150. A further complaint is made about the primary judge’s statement that: … the experts did not explain what “threshold” they were applying [when expressing an opinion as to the capacity of the applicant to follow the course of the proceeding]. Their opinion refers to a diminished capacity, whereas the statutory test refers to inability or capacity. Primary Judgment at [73].

151. On behalf of the applicant, it is said that her Honour erred by distinguishing between a “diminished capacity” to be tried and a “hypothetical absolute”.

152. The primary judge’s finding at [73] needs to be read in the context in which it appears. The experts had expressed the opinion that the applicant would have a “diminished capacity to follow the course of the proceedings”. The primary judge did not err by observing that the question is of incapacity rather than diminished capacity. As the New South Wales Court of Criminal Appeal concluded in Rivkin at [297] – [298], a “reduction in the capacity of an accused” to meet the Presser requirements which “falls short of denying to that accused the capacity to understand and to follow the proceedings in each of the necessary aspects” is not sufficient to constitute unfitness (emphasis in original).

The evidence of the social workers (Ground (e))

159. In the final ground of appeal which alleges specific error (ground (e)), a complaint is made about the following finding of the primary judge concerning the statements of the two social workers: The statements of the social workers did not take the issues much further. It may be accepted that their experience of Ms Adams is consistent with the diagnosis of major cognitive impairment disorder. However, their evidence was not specific as to the likely course of a trial. Primary Judgment at [32]

160. It was submitted on behalf of the applicant that the primary judge erred in so finding because “it concerned the applicant’s capacity to do, understand and comprehend the matters in s 311(1)”.

161. In the impugned passage, the primary judge did not find that the evidence of the social workers was irrelevant. Rather, her Honour, noting that the social workers’ evidence did not directly relate to the course of a trial, gave the evidence little weight in the overall evaluative decision as to the applicant’s fitness to be tried.

162. The primary judge did not err in either of the factual statements made in the impugned finding (that is, that the social workers experience was “consistent” with the applicant’s diagnosis, and that their evidence was “not specific as to the likely course of a trial”). Whether or not their statements “took the issues much further” is a question that is properly addressed in considering the challenge to the primary judge’s ultimate conclusions as to fitness in grounds (a) and (b).

163. This ground of appeal should be dismissed.

The conduct of the investigation (ground (f)) Outline

164. In ground (f), it is contended that the primary judge “erred in the conduct of the investigation pursuant to s 315A of the Crimes Act”. The following particulars are provided in support of this ground: (i) The parties should have been given notice that the expert evidence would be rejected because it “applied a standard of understanding and analysis that is higher than the standard accepted in the authorities”; (ii) The investigation should have been continued either by giving the parties the opportunity to obtain evidence that did apply that standard or by the court taking steps under s 315A(1)(b); (iii) By conducting the investigation on the basis of inadequate or insufficient evidence, her Honour conducted the investigation on an inter partes basis rather than an inquisitorial basis; and (iv) By conducting the investigation on an inter partes basis, her Honour placed an onus of proof upon the applicant and/or the respondent which does not exist in such an investigation.

165. These particulars are addressed below.

Procedural fairness (particulars (i) - (iii))

166. The primary judge was obliged to afford the applicant procedural fairness. The contention that she did not do so must be rejected.

167. On behalf of the applicant, it is properly accepted that a decision maker is not obliged to give the parties “a running commentary upon what it thinks about the evidence that is given”: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [26] and [48]. Rather, the complaint is said to be that “the [applicant] was not given an opportunity to respond to her Honour’s view as to the relationship between the expert evidence and the legal test being applied”. There is no merit in this submission.

168. The history of these proceedings is set out at [9] – [118] above. Importantly, at the first hearing in the investigation, the primary judge expressly warned the parties that she was “not persuaded by the material I’ve seen so far”. The primary judge then highlighted two specific concerns which she held: first, that the experts had appeared to address the questions “from a very high standard” which did not “reflect either the authorities or [the primary judge’s] understanding of the issue”, and second, that there was no evidence from the applicant’s lawyers as to any difficulties that had been occasioned in obtaining instructions. Noting that, by reason of the Acting Director’s then concession, the applicant’s legal representative had not had an opportunity to consider those concerns, her Honour, making express reference to the need to afford the applicant procedural fairness, adjourned the proceedings to enable further evidence to be obtained and for written submissions to be prepared. The adjournment was for a period of six months, providing the applicant’s legal representatives ample time to address the issues raised.

169. After further evidence was adduced on 13 May 2024, the primary judge adjourned the proceedings for a further week, to 21 May 2024, to enable the parties to make submissions on the evidence. Both parties filed written submissions, which addressed, inter alia, authorities concerning the standard to be applied when determining whether the applicant was fit to be tried. In oral submissions on 21 May 2024, the prosecutor expressly submitted that a question for the primary judge was whether Professor Greenberg was “applying a somewhat higher test than at least is set out in Dunne which refers to Ngatayi”.

170. In short, the applicant was afforded ample opportunity to respond to the concern that the experts’ opinions were predicated on an overly high threshold for fitness. Accordingly, it has not been established that there was any breach of the duty to afford procedural fairness. Accordingly, particulars (i) and (ii) of this ground of appeal have not been established. The nature of the hearing (particular (iii))

171. In particular (iii), it is alleged that “by conducting the investigation on the basis of inadequate or insufficient evidence, her Honour conducted the investigation on an inter partes basis rather than an inquisitorial basis”.

Onus of proof (particular (iv))

179. On behalf of the applicant, it is next submitted that the primary judge’s rejection of the expert evidence “is suggestive of an onus of proof on the [applicant] to establish fitness”.

180. This contention must also be rejected. The absence of any onus of proof means that no adverse inference may be drawn against a party for failing to adduce evidence, or to ask questions of witnesses in cross-examination: cf Jones v Dunkel [1959] HCA 8; 101 CLR 298 and Browne v Dunn (1893) 6 R 67. The absence of an onus of proof does not mean that a court is obliged to act on uncontradicted expert evidence.

181. Whilst there is no onus of proof, there is a presumption that an accused is fit to be tried. In deciding whether the presumption of fitness is overcome, it is open to a court to refer not only to the evidence that is before the court, but also to observe where particular evidence is lacking: Victors at [21] – [22]. Accordingly, particular (iv) has not been demonstrated.

Conclusion

182. As none of the particulars of ground (f) have been demonstrated, this ground of appeal should be dismissed.

Appeal grounds (g) – (k): The availability of a witness intermediary

183. Appeal grounds (g) – (k) concern the question of whether a witness intermediary could be appointed for the applicant. Appeal ground (g) contends that the primary judge erred by taking into account the possibility that a witness intermediary may be appointed for the applicant when determining whether the applicant was fit to be tried. Appeal grounds (h), (j) and (k) raise questions of statutory construction (that is, whether the relevant provisions permit a witness intermediary to be appointed for an accused person), and issues as to the constitutional validity of the provisions.

184. At the core of these appeal grounds was a concern that the witness intermediary “would be in confidential discussions between counsel and the client”. It is unclear why this concern was held. In oral argument on 21 May 2024, the primary judge made it clear that she did not construe the intermediary provisions to permit a witness intermediary to “inject herself… into any privileged communications between lawyers and the accused”.

185. However, there is, in any event, a more fundamental answer to these grounds of appeal, specifically, that it would not be a proper exercise of the power to appoint a witness intermediary over the objection of an accused.

186. Ms McCann, who undertook the oral advocacy on behalf of the Director in respect of the grounds of appeal relating to witness intermediaries, accepted that whilst the Court has power to appoint a witness intermediary on its own initiative, an intermediary for an accused person cannot “be appointed unless, effectively, they consent to it”. In other words, Ms McCann submitted, the witness intermediary provisions provide for an “opt-in scheme”.

187. This submission should be accepted. Section 4AJ(1) of the EMP Act confers a discretion upon a court to appoint a witness intermediary, either on its own initiative, or on the application of the DPP, the witness or the accused person. Section 4AJ(2) of the EMP Act further provides that: (2) A court must not appoint an intermediary for a witness under this section if satisfied that the witness— (a) is aware of their right to make an application for an intermediary to be appointed; and (b) is able to, and wishes to, give evidence without the assistance of an intermediary.

188. The blanket prohibition in s 4AJ against appointing a witness intermediary over the objection of a witness only applies where the witness is “able” to give evidence without the assistance of a witness intermediary. Strictly speaking, the statutory prohibition in s 4AJ(2) does not apply to an accused person who otherwise lacks capacity to give evidence without the assistance of an intermediary.

189. However, the discretion to appoint a witness intermediary in s 4AJ(1) must be informed by the policy that underlies s 4AJ(2), namely that a witness intermediary should not be ordered over the objection of a witness. This policy is heightened where the witness is an accused person. The considerations are pragmatic as well as principled: a witness intermediary can only assist where the witness engages in a communication assessment with the witness intermediary, leading to the preparation of a written report about the witness’ communication needs: s 4AE of the EMP Act.

The capacity of the applicant to follow the proceedings and to understand the substantial effect of any evidence that may be given in the prosecution case

208. In expressing their opinions that the applicant did not have the capacity to follow the proceedings or to understand the substantial effect of any evidence that may be given in the prosecution case, the experts repeatedly emphasised that the applicant was “able to retain simple information, but not complex or sequential information”.

209. Examples of “simple information” which the experts considered the applicant had the capacity to comprehend and retain included evidence that there was a speed camera, which recorded a particular speed and evidence from a witness that the accused was “driving recklessly”.

210. There is also evidence in the experts’ reports and in the other evidence before the Court that: (a) The applicant recalled and understood that the prosecution alleged that she had been driving at 177km/hr; (b) The applicant recalled and understood that a man named “Matthew Luckie” died as a result of the collision; (c) The applicant recalled and understood that it was alleged that the car that she was driving was stolen; (d) The applicant understood that dashcam footage could show how she was driving and how the collision occurred; (e) The applicant demonstrated some insight into the consequences of the injuries that she sustained in the collision. In particular, she appreciated that she does not have a memory of the evening of the collision and she understood that her brain injury has had an effect upon her emotional regulation; (f) The applicant understood, in a general sense, that she had been charged with serious offences and the potential consequences of being found guilty of those offences; (g) The applicant understood that the purpose of the proceedings was to determine if she was guilty of the charged offences; (h) The applicant understood that her lawyers are contending that she is unfit to be tried as a result of the injuries that she sustained in the collision.

211. Examples of the kinds of “complex information” which the experts reported the applicant could not understand and/ or retain included: (i) Making comparisons between the evidence of different witnesses; (ii) Evidence of the particular sequence of the driving manoeuvres engaged in by the applicant’s vehicle and/ or other vehicles; (iii) The difference between an oath and an affirmation; (iv) Understanding how her lawyer would defend her; and (v) Understanding the role of the prosecutor.

212. As to (i) and (ii), as noted above, it is not necessary that the accused be able to undertake a detailed comparison of the evidence of different witnesses. That is a task which can properly be undertaken by counsel. Nor does an accused need to have the capacity to understand the granular detail of the evidence, such as a witness’ evidence of the particular sequence of driving manoeuvres, in order to be fit to be tried. All that is required is that the accused understand follow the course of the proceedings and understand the “substantial effect” of the evidence. The kinds of “simple” evidence which the applicant can recall and understand would, prima facie, appear to be sufficient to meet this requirement in light of the likely complexities of the trial in this instance.

Ability to give instructions

219. As to the applicant’s capacity to give instructions to her lawyers, the evidence demonstrates that the applicant knew and recalled the identity of her legal representative. She has also indicated that she feels comfortable with her lawyer undertaking aspects of the trial (for example, challenging jurors) on her behalf. She has said that she understands that she can tell her lawyer if she believes that evidence given by a witness is untrue. She believes that her lawyer would “have her back”. She was able to provide information to Dr Barker about her prior drug use (in particular, she reported that she was using $50 worth of cannabis and $600 worth of crystallised amphetamines daily, but denied the use of alcohol or opiates). When asked about the allegation that she was driving a stolen car, the applicant was able to inform Dr Barker that the car was not stolen, because she purchased it for a “ball of ice”. The evidence of the applicant’s interactions with police on the USB recording indicates that the applicant is capable of conveying information, and communicating her views on at least some issues concerning her welfare.

220. Professor Greenberg expressed the opinion that aspects of information which the applicant does recall, including that she purchased the allegedly stolen car “for a ball of ice”, may be the result of a “confabulation”, because the applicant otherwise could not recall the events leading up to the collision.

221. There are first instance decisions in this jurisdiction and in Western Australia which have held that an accused’s reliability may be taken into account when determining whether an accused is fit to be tried. In particular, in Egan v JG [2010] ACTSC 53 at [110], Refshauge J held that: … a defendant may be unfit to plead because their condition may not enable them to meet this criterion where, although they can give an account of relevant events to counsel, the reliability of the account is problematic as is their capacity to adhere to it when subjected to pressure or suggestion, as occurred in R v Dunne [2002] WASC 196 at [26].

222. However, care must be taken before concluding that an accused person is unfit to be tried because of concerns about the reliability of their instructions. Accused persons may provide unreliable instructions to their legal representatives for different reasons, and the determination of whether instructions are in fact “unreliable” can be difficult. Generally speaking, a fitness investigation is not an appropriate forum to determine the reliability of an accused’s instructions.

223. Again, this issue concerns matters of degree. If an accused person agrees with each and every proposition made by their legal representative, it may readily be concluded that the person lacks the capacity to instruct their legal representatives. The provision of instructions requires more than a bare ability to communicate a response, however meaningless. As Refshauge J observed in Egan at [112] (citing Ian Freckleton, ‘Rationality and Flexibility in Assessment of Fitness to Stand Trial’ (1996) 19 International Journal of Law and Psychiatry 39 at 53), “mere capacity to communicate an instruction is not sufficient”. Rather, the instructions “must be responsive to questions posed and more than monosyllabic, as well as not being nonsensical or irrational”: Egan at [112]. However, the fact that an accused person may be suggestible (particularly when fatigued) will not be sufficient to lead to a conclusion that the accused lacks the capacity to give instructions to their lawyer.

Orders

240. For the above reasons, the following orders are made: (1) The appeal is dismissed.

I certify that the preceding two hundred and forty [240] numbered paragraphs are a true copy of the Reasons for Judgment of The Court of Appeal

Associate: A McKay Date: 29 January 2025