Dillon-Nasr v Marshall [2025] ACTSC 534

1. On 7 December 2023, following an inquiry into the appellant’s fitness to plead, Special Magistrate Richter (the Magistrate) found the appellant fit to plead pursuant to s 315A(3) of the Crimes Act 1900 (ACT) (Crimes Act) (Marshall v Dillon-Nasr (unreported, ACT Magistrates Court, 7 December 2023)).

Amended grounds of appeal

2. During the hearing before me on 12 June 2024, leave was granted for the appellant to amend the notice of appeal. An amended notice of appeal outlined the following revised 1 grounds: (a) The Magistrate was wrong to find the appellant fit to plead on the evidence. (b) The Magistrate erred in his decision in relation to s 311(1)(f) [of the Crimes Act]. (c) The Magistrate erred in his rejection of the expert evidence of Professor Hayes and Camille [Falkiner]. (d) The Magistrate’s findings arising from his observations of the appellant in court were in error.

3. The appellant seeks orders that the appeal be allowed, the finding that the defendant is fit to plead be set aside and replaced with a finding that the defendant is unfit to plead per s 315A(3) of the Crimes Act.

The alleged offending

4. The appellant is charged with the following: (a) Aggravated assault occasioning actual bodily harm, contrary to s 24 of the Crimes Act (CC2023/3748); (b) Aggravated unlawful choke, suffocate or strangle another person, contrary to s 28(2)(a) of the Crimes Act (CC2023/3749); and (c) Aggravated common assault, contrary to s 26 of the Crimes Act (CC2023/3750).

5. The alleged offences arise from an incident on 15 April 2023. The allegations 2 summarised in the prosecution’s submissions are as follows. The complainant, the

1 Dated 20 June 2024. 2 For the sake of clarity, I will refer to the respondent as the prosecution. subject of the alleged offences, is the appellant’s mother. At around 10:20am on 15 April 2023, the appellant and the complainant were both at their residence, with the appellant sitting at a table in the family room with his support worker. The appellant began punching and poking the support worker in the arm with a light amount of force. In response to this behaviour, the complainant and the appellant’s support worker told him they would not be going out as they had planned.

6. The appellant became increasingly agitated and went back and forth from the family room. At one stage when the appellant had returned to the family room, the appellant choked the complainant by wrapping his hands around her neck at least five times. The appellant placed pressure onto the front of the neck using his thumbs, to the point where the complainant’s voice became high pitched when the appellant was applying force to her neck. On one occasion, the appellant choked the complainant from behind by wrapping his elbow joint around her neck. The appellant also slapped the complainant in the face two or three times, and also grabbed her hand and bent her fingers backwards, as well as punched and pinched her arms.

7. At about 11:30am, the appellant returned to the family room and said that he was “ready to go.” The complainant told the appellant they would not be going anywhere. The appellant then approached the complainant and kicked her in the left leg. The appellant was wearing shoes at the time and the force of the kick caused a red gash on the front of the complainant’s shin which began to bleed. At around this time, the appellant’s support worker called police. The complainant participated in a family violence recorded statement with the police, and the support worker described what she had witnessed. The appellant admitted to kicking the complainant. The appellant was arrested and taken into custody.

Decision of the Magistrate

8. On 9 May 2023, an order was made for the appellant to undergo an assessment in relation to his fitness to plead. That assessment was undertaken by Dr Anthony Barker on 23 May 2023 and a report produced dated 10 July 2023. The appellant was also assessed by Professor Emeritus Susan Hayes on 19 October 2023 and a report produced dated 31 October 2023.

9. The inquiry into the appellant’s fitness to plead, was heard by the Magistrate on 17 November 2023. As noted in Dillon-Nasr at [10], the Magistrate heard evidence from both Dr Barker and Professor Hayes as well as evidence from the appellant’s father, Mr Dillon. Additionally, several reports and documents were tendered into evidence, including the following: (a) A report of Dr Anthony Barker, Psychiatrist, dated 10 July 2023 (Exhibit 1); (b) An undated supplementary report of Dr Anthony Barker (Exhibit 2); (c) A report of Professor Emeritus Susan Hayes, Clinical Psychologist, dated 31 October 2023 (Exhibit 3); (d) A report of Ms Falkiner, Psychologist, dated 30 May 2022 (Exhibit 4); 3 (e) Two letters from Dr Ratnayake, Psychiatrist, and one letter from Dr Westcombe 4 (Exhibit 5); (f) A letter of Ms Read, Behaviour Support Practitioner, dated 18 April 2023 (Exhibit 5 6); and (g) A police statement of facts (Exhibit 7).

10. The Magistrate delivered his decision on the appellant’s fitness to plead on 7 December 2023. His Honour determined that the appellant was fit to plead. I note that the appellant’s charges remain in the ACT Magistrates Court for mention, pending the outcome of this appeal.

Jurisdiction

11. These proceedings were brought pursuant to Div 3.10.2 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act). This Court has jurisdiction to hear an appeal from a decision relating to the appellant’s fitness to plead under s 208(1)(a)(i) of the Magistrates Court Act. The nature of the appeal is by way of rehearing. The rehearing requires the appellant to demonstrate legal, factual or discretionary error on the part of the Magistrate. I have determined, in this case, that there is error on the part of the Magistrate.

12. My approach to this appeal is governed by legal principle. The relevant legal principles were discussed by the Court of Appeal in Alexander v Bakes [2023] ACTCA 49 at [10]- [25] (Alexander). As the Court (Mossop, Baker and Abraham JJ) pertinently observed, “it must always be borne in mind that the appeal is a “process for the correction of error”” (at [22]).

13. It is the case that this Court must undertake a “real review” of the evidence and the decision in the court below, paying due deference to the advantages enjoyed by the trier

3 Mental Health Service for People with Intellectual Disability. 4 Concerning the Disability Support Pension. 5 Concerning incarceration and the appellant’s vulnerabilities. of fact at first instance. I have done so. That is, I have both undertaken a real review of the evidence and the decision in the court below, while at the same time, I have given due deference to the advantages enjoyed by the Magistrate at first instance. In determining whether the appellant has demonstrated legal, factual or discretionary error, I have paid heed to the avowedly natural limitations of proceeding, as I must, on the written record. The Magistrate had an advantage in hearing and seeing witnesses give evidence. There is also an accepted advantage in the “feeling” of the case which the appellate court, when reviewing the transcript, cannot perforce share. At the risk of repetition, I emphasise that I have borne these important limitations in mind in assessing the record at first instance. Nevertheless, this case does not begin and end solely on the basis of the Magistrate’s first instance advantage. That is not the alpha and omega of an appeal of this nature.

14. It is uncontroversial that an appeal court must respect the advantage the Magistrate had in seeing the witnesses. Nevertheless, an appeal court should not recoil nor shrink from giving effect to, the decision reached on the evidence after review (Warren v Coombes (1979) 142 CLR 531 (Warren v Coombes) at 551; Fox v Percy [2003] HCA 22; 214 CLR 118 (Fox v Percy) at [23]; Peverill v Crampton [2010] ACTSC 79 (Peverill v Crampton) at [24]). Warren v Coombes uses the phrase “will not shrink from” (at 551); Fox v Percy uses “are not excused from” (at [25]) and later, “are authorised, and obliged” (at [27]); Peverill v Crampton discusses conducting a real independent review of the evidence (at [24]). Again, I emphasise that these are important principles that I have observed in my review of the court record at first instance.

15. Relevantly, this Court may confirm, reverse or vary the decision appealed from, or give the judgment or make the order that, in all the circumstances the Court considers appropriate: see s 218(1) of the Magistrates Court Act.

16. Finally, I underline the following four points: (a) First, that it is uncontentious that fitness to plead is a question of fact to be determined on the balance of probabilities. It is to the civil standard of the balance of probabilities, and not the criminal standard of beyond reasonable doubt, that I must adhere. (b) Second, that the purpose of this appeal is to challenge the ultimate factual finding of the Magistrate: see Alexander at [18]. (c) Third, that the standard of review is the correctness standard: see Adams v DPP (No 2) [2025] ACTCA 3 (Adams v DPP) at [139]-[141]. (d) Fourth, that I have undertaken a real review of the evidence: see Adams v DPP at [141].

Test for fitness to plead

17. The statutory test is contained within Div 3.2 of the Crimes Act. There is a presumption of fitness; specifically, s 312 presumes a person is fit to plead. Relevantly, s 312 states: 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. (Emphasis added by this Court.)

18. Section 311 Crimes Act underlines the criteria for deciding the question of fitness: 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. (Emphasis added by this Court.)

19. Thus, I underline that there is a statutory presumption of fitness to plead, and no party bears a burden of proof in relation to fitness to plead.

20. I also note s 315A of the Crimes Act: 315A Investigation into fitness to plead On an investigation into a defendant’s fitness to plead— (a) the court must hear any relevant evidence and submissions put to the court by the prosecution or the defence; and (b) if the court considers that it is in the interests of justice to do so, the court may— call evidence on its own initiative; or (ii) require the defendant to be examined by a psychiatrist or other health practitioner; or (iii) require the results of the examination to be put before the court. (2) Before hearing any evidence or submissions, the court must consider whether, for the protection of the defendant’s privacy, the court should be closed to the public while all or part of the evidence or submissions are heard. (3) The court must decide whether the defendant is unfit to plead. (4) If the court finds that the defendant is unfit to plead, the court must also decide whether the defendant is likely to become fit to plead within the next 12 months. Legal principles

21. The following principles are well established, and conveniently summarised (as 6 highlighted by the Court of Appeal in Victors) by Refshauge J in R v Fisher [2011] ACTSC 56 at [29] (Fisher): 1. The notion in s 311 of the Crimes Act of a person's mental processes being disordered or impaired should not be read down so as to exclude the developmentally or intellectually disabled: R v Mailes [2001] 53 NSWLR 251 (at 296).

22. The fact that the disorder or impairment may cause an accused person to conduct his or her defence in a manner which the court considers is contrary to their interests does not, of itself, mean that they are unfit to plead: R v Taylor (1992) 77 CCC (3d) 551 (at 564-5).

23. That the disorder or impairment may produce behaviour that will disrupt the ordinary flow of the trial does not make the person unfit to plead: R v Taylor (at 564-5).

24. That the disorder or impairment prevents the accused from having an amicable, trusting relationship with counsel does not render the person unfit to plead: R v Taylor (at 564-5).

25. That an accused person would have presented a better defence had he or she been on medication not provided at trial is not relevant to the question of fitness to plead: R v Rivkin (2004) 59 NSWLR 284 (at 297; [298]).

26. The court is not required to search, fruitlessly, for a hypothetical accused with capacity, intellectual or otherwise, which might equip him or her with the ability to conduct a defence at a predetermined level: R v Rivkin (at 297; [299]).

6 Victors (a pseudonym) v DPP (No 2) [2023] ACTCA 27 at [8] (Loukas-Karlsson, Baker and Bromwich JJ). See also R v MU [2021] ACTSC 144; 16 ACTLR 165 at [14]-[18]. 7. That is to say, fitness to plead does not require an accused person to have a particular level of intelligence, legal knowledge or experience, or common sense: R v Bailiff (at 12; [44]).

8. The court may take into account the appearance and behaviour of an accused when he or she appears for trial: R v Khallouf [1981] VR 360 (at 364-5); Bailiff v The Queen (at [16]).

9. The court may also consider factors such as the conduct of the accused during any interview by the police, which includes consideration of the person's understanding of and response to questions, the person's prior experience with police investigations and with instructing lawyers, and any difficulties in his or her comprehension in the past: R v Stevens (2010) 107 SASR 456 (at 469; [60]).

10. The court can also take into account factors such as the attention span of the accused: R v McKitterick (2004) 36 SR (WA) 115 (at 119; [24]); R v Polanski [1999] NSWSC 433 (at [53]).

11. Lack of understanding of the proceedings can be shown by the accused, although showing he or she can follow the evidence of a witness, by reacting in a quite inappropriate way, disclosing a lack of appreciation of the bases of the evidence and its import: R v Polanski (at [60]).

12. Relevant evidence may be available from support persons for the accused or from lawyers who had represented him or her in the past, identifying difficulties in taking instructions, providing advice or acting: R v Stevens (at 463; [33]).

13. The tests set out in s 311 of the Crimes Act do not require a complete understanding of the proceedings and the issues, especially of substantive law, to which they are addressed: Ngatayi v The Queen (1980) 147 CLR 1 (at 8).

14. Many crimes are committed by persons of low intelligence, lack of insight into their behaviour and low cognitive skills, which does not of itself mean they are unfit to plead and the tests need to be applied in a reasonable and common sense fashion: Ngatayi v The Queen (at 8); R v Stevens (at 468-9; [58]).

15. The assessment needs to be conducted and the finding determined in the context of the actual charge preferred, for it is relevant that some charges are more complicated to understand than others: R v Stevens (at 468; [57]).

16. When an accused person is represented by counsel, that is a relevant factor to be taken into account: Ngatayi v The Queen (at 9); R v Dunne [2001] WASC 263 (at [14]). 17. The length of the trial is also a relevant factor to consider: Kesavarajah v The Queen (at 245-6).

17. Where steps can reasonably be taken to accommodate the difficulties of the accused, including adjournments, “one-on-one” assistance to follow the proceedings, insistence on brief, clear questions to the accused if he or she is examined on oath, an opportunity for the accused to narrate his or her version of events without interruption and the like the implementation of these will mean the accused is not unfit to plead: Kesavarajah v The Queen (at 246), R v Smith [2008] NSWDC 23 (at [36]); R v Tuigamala [2007] NSWSC 493 (at [22]).

18. That a Guardianship Order has been made in respect of an accused does not prevent an accused from giving instructions to his or her counsel nor render any such instructions ineffective or insignificant and, having been made on different criteria, is not determinative of the question of the accused's fitness to plead: R v Bailiff (at 24-5; [102] to [110]).

(Emphasis added by this Court.)

22. I note, at this juncture, that I discuss guardianship in greater detail later in this judgment at [132]-[138].

23. It is also well established that the question of a defendant’s fitness is to be approached in a reasonable and common-sense fashion: see Eastman v The Queen [2000] HCA 29; 203 CLR 1 at [298] per Hayne J; see also Victors (a pseudonym) v DPP (No 2) [2023] ACTCA 27 (Victors).

24. Relevantly, s 315A(1)(a) provides that the court “must hear any relevant evidence” and the court may call evidence.

25. Additionally, it is clear that evidence which may inform the question of fitness is not limited to expert opinion. Such evidence may include family members or support persons for example: Fisher at [29](12). In this case for example, the appellant’s father gave evidence at first instance.

26. As noted by both the appellant and prosecution counsel, the observations of a defendant by a judicial officer during the proceedings may also be considered in forming the assessment of fitness. It is also well established that it does not necessarily follow, that because expert evidence is unchallenged, or all one way, as it were, that the court is obliged to accept that opinion: see R v Klamo [2009] VSCA 75; 18 VR 644 at [44]. My responsibility as a judge is to assess the expert opinions, and assess the expert evidence as against the whole of the evidence. The assessment of fitness as such, cannot be ceded or delegated to an expert: see Jarrett v The Queen (1994) 73 A Crim R 160 at 169. The court is the final arbiter of all the evidence, not medical experts.

27. Nevertheless, it is equally important to underline that a judge cannot eschew expert opinion capriciously. As Refshauge J aptly observed in Fisher at [31], while the court is not bound by the opinion of experts, it “will give such opinion great weight…”. In my view the evidence of Professor Hayes was worthy of greater weight than that ascribed to the evidence by the Magistrate (as I discuss later in the judgment at [105]-[109]).

28. It is accepted that where there is other evidence which may cause doubt or displace the expert opinion, the judge need not accept the opinion simply because it is unchallenged: see Taylor v The Queen (1978) 45 FLR 343 (Taylor). It is further accepted that the weight to be given to expert opinion on fitness may be impacted by the application of the relevant statutory criteria and the realities of a criminal trial in forming an opinion: see R v Stevens [2009] SADC 143 at [29]. Nevertheless, in this case, the Magistrate, as I discuss later in this judgment at [117] to [124], gave somewhat rigid reliance on the childish interjections by the appellant in Court, as demonstrating fitness to plead and apparently specifically 7 demonstrating the ability to give instructions.

Decision of McCallum CJ: DPP v Adams [2024] ACTSC 181

29. On 11 June 2024, the day before hearing of this appeal, McCallum CJ handed down the then-unpublished decision of DPP v Adams [2024] ACTSC 181 (DPP v Adams). DPP v Adams addressed the question of fitness to plead where the accused had a major neurocognitive disorder. The decision also addressed the threshold requirement to displace the s 312 presumption of fitness.

30. In relation to the criteria in s 311, McCallum CJ confirmed that the inquiry for fitness to plead, is as to whether the accused’s mental processes are disordered or impaired to the extent that the accused cannot perform one of the six actions specified under s 311. Relevantly, McCallum CJ found this assessment was governed by the fundamental requirement, at common law as confirmed by s 21 of the Human Rights Act 2004 (ACT), that accused persons are entitled to a fair trial. An accused person cannot enjoy a fair trial if the accused person is unfit to plead. Accordingly, the relevant test for unfitness must be whether the impairment of the accused’s mental facilities is established to the

7 Reasons of Magistrate at [41]-[45]; the Magistrate highlighted the following three observations in his decision: “bonjour” (Magistrates Court transcript at p 21(30)-(33)), father’s middle name (Magistrates Court transcript at p 25(47)), and the appellant’s showing of the driver’s licence (Magistrates Court transcript at p 23(34)-(38)). extent that the accused cannot “do any of the six things to the standard appropriate to ensure a fair trial.”

31. McCallum CJ also addressed the question of whether an intermediary can be appointed under Ch 1B of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMP Act) for the purposes of assisting an accused to better follow the course of proceedings. McCallum CJ found, inter alia, that the meaning of “witness”, relevant to ss 4AA and 4AI of the EMP Act, includes an accused person who does not give evidence. Accordingly, Ch 1B supports the appointment of an intermediary for the accused regardless of whether the accused had elected to give evidence at the time of appointment. A corollary of this construction is that the s 311 test may be understood by reference to the accused’s ability to perform the six actions, “assisted by counsel and having regard to the availability of the assistance of an intermediary”. I note the emphasis by way of italics therein appeared in the original judgment.

32. While the Court of Appeal (discussed below) dismissed the appeal from the decision of McCallum CJ, the Court of Appeal adopted a different approach to the intermediary question to that of McCallum CJ.

Court of Appeal decision: Adams v DPP (No 2) [2025] ACTCA 3

33. McCallum CJ’s decision was the subject of an appeal to the ACT Court of Appeal: Adams v DPP. On 29 January 2025, the Court of Appeal dismissed the appeal. While the appeal was dismissed, the appeal decision highlighted that the availability of an intermediary may be put to one side where an accused does not consent to the appointment of an intermediary: at [190].

34. The Court of Appeal decided that the “real issue” in the fitness to plead proceedings before McCallum CJ was whether the accused’s mental processes “were impaired ‘to the extent’ required by s 311”, and that her Honour undertook the correct process in determining whether any of the criteria under s 311 were met to the requisite extent.

35. The Court of Appeal addressed whether the availability of a witness intermediary could be taken into account when determining fitness to plead. Importantly in this context, I underline that the Court of Appeal stated that, in accordance with s 4AJ(2) of the EMP Act, the witness intermediary program is an “opt-in scheme”, meaning that an intermediary can generally only be appointed with the consent of the witness or accused person. Although the requirement for consent does not strictly apply to an accused person who otherwise lacks capacity to give evidence without the assistance of an intermediary, the Court of Appeal was of the view that, as a matter of policy, a court should avoid appointing an intermediary over the objections of an accused whose fitness to be tried was in question. Accordingly, the Court of Appeal found that, where an accused person expressly or impliedly objects to the appointment of a witness intermediary, the assessment of the accused’s fitness to plead “must be conducted on an assumption that a witness intermediary will not be available”. The Court of Appeal inferred that the appellant in that case objected.

36. The Court of Appeal found that, notwithstanding McCallum CJ’s consideration of the question of intermediary availability, her Honour had not in fact taken the availability of an intermediary into account in determining the capacity of the accused in that case. Further, the Court found that even if McCallum CJ had taken the availability of an intermediary into account, the Court was still satisfied that the presumption of fitness would not have been rebutted even without taking into account the availability. Accordingly, the Court of Appeal found no error was made.

37. In my view, it is appropriate for this Court, in the case before me, to draw the same inference on the available evidence. That is that the appellant impliedly objects.

Further submissions on s 311 and Court of Appeal decision

38. Following the hearing on 12 June 2024, counsel made further submissions on the meaning of “cannot” in s 311 of the Crimes Act 1900 (ACT). Additionally, counsel were also asked to provide further submissions concerning the Court of Appeal decision in October 2025.

Appellant’s further submissions on “cannot”

39. In brief summary, the appellant submitted that, in relation to the application of “cannot”, the issue is the extent of the impairment and that this is a case where the extent of the disability meant that the appellant could not give instructions.

Prosecution’s further submissions on “cannot”

40. In brief summary, the prosecution submitted that the expert evidence of Professor Hayes and Ms Falkiner applied the threshold of limitations on capacity to the criteria in s 311, as opposed to incapacity or inability as required by the test of “cannot” as provided for in the legislation.

Appellant’s further submissions on Adams v DPP

41. In summary, the appellant correctly submitted that Adams v DPP did not change the law concerning fitness to plead. Relevantly, it was underlined that the availability of an intermediary was not a relevant consideration, in this case. Additionally, the appellant submitted that the facts in DPP v Adams and Adams v DPP were distinguishable from the facts in this case, in particular on the basis of severe intellectual disability and the guardianship issue.

Prosecution’s further submissions on Adams v DPP

42. In summary, the prosecution correctly submitted that Adams v DPP endorsed the approach adopted by McCallum CJ in DPP v Adams. Relevantly, the prosecution conceded that the Magistrate had referred to the assistance of an intermediary in considering possible accommodations available to the appellant. This was relevant to the Court of Appeal’s finding in Adams v DPP that the availability of an intermediary is not a consideration where an accused objects to an intermediary being appointed. However, the prosecution submitted that the prospect that an intermediary might be appointed was not material to the Magistrate’s overall conclusion. At this point, I note that there is certainly force to the submission that the question of the availability of an intermediary was not material to the Magistrate’s overall conclusion.

43. It is now appropriate to review the evidence in this case concerning the appellant, and review the submissions of counsel as against the evidence.

Analysis of evidence

44. The appellant summarised the evidence at first instance. There was no objection to the summary of evidence. The following summary of evidence has been reviewed as against the evidence. I note that Ms Falkiner did not give evidence before the Magistrate at first instance. Ms Falkiner’s report however was in evidence.

Ms Falkiner

45. Ms Falkiner, a registered psychologist, provided a report dated 30 May 2022. I note the date of this report was prior to the date of the allegations in question and was not prepared for this case.

46. During the assessment the appellant impressed Ms Falkiner as childlike in his behaviours. He would knock under the table or desk and then say there was someone at the door. Past behaviour that was noted included smearing faeces, and being admitted 8 to hospital in the context of paranoid and delusional ideation and plans to self-harm.

47. Ms Falkiner noted that the appellant’s clinical file recorded a moderate intellectual disability and autism from 12 years of age. A further assessment identified an extremely

8 Report of Ms Falkiner at p 3. low mild intellectual disability, with an IQ of 60, at 16 years’ old and literary skills at grade 2 level. Ms Falkiner did not herself conduct independent testing.

48. Ms Falkiner observed that the appellant’s form of speech was difficult to understand and expressed the opinion that the appellant’s capacity to instruct a lawyer was historically 9 reliant on his guardian “translating”, “prompting” and “preparing” him. I highlight here that the guardian is his mother, who is also the complainant in the appeal before me. That fact, in my view, is of significance in this case. I discuss this matter further below at [132]-[138].

49. Ms Falkiner, in providing her opinion that the appellant was not fit to plead, properly noted that it is for the court to make a final determination about a person’s fitness to plead. The appellant submitted that Ms Falkiner’s first conclusion was that he would be unable to meaningfully follow the course proceedings due to his cognitive disability and confusion about the roles of the persons in the courtroom: s 311(1)(d). The second conclusion was that the appellant would be unable to give instructions to his lawyer: s 311(1)(f).

50. In my view, the conclusions of Ms Falkiner, in particular, the observations of the childlike behaviour of the appellant and his historical reliance on his guardian, who is his mother (and the complainant, in this case), to “translate” for him, “prompt” him and “prepare” him, are significant factual matters to be taken into account on the evidence; in particular, on the question of giving instructions to his lawyer: s 311(1)(f).

51. I underline the following summary in Ms Falkiner’s report: In summary, it appears that [the appellant’s] capacity in respect to fitness has been dependent on his guardian’s assistance historically (translating, prompting and preparing him)…

52. Thus, Ms Falkiner concluded that on balance, in her opinion, the appellant was not fit to 10 plead.

Dr Barker – first report

53. At the outset, it is important to note that there were two reports from Dr Barker. Dr Barker, a consultant forensic psychiatrist, provided the first report dated 10 July 2023 and subsequently gave oral evidence. Dr Barker’s initial opinion in this first report was that

9 Report of Ms Falkiner at p7. 10 Report of Ms Falkiner at p 7. he was “not satisfied” the appellant was unfit, despite the appellant asserting the 11 contrary.

54. Mr Barker included material from the appellant’s mental health clinical record. He noted the appellant had undergone a cognitive assessment with a clinical psychologist, Dr Boer, in February 2020. Dr Boer assessed that the appellant had an IQ of 70 and diagnosed him with a mild intellectual disability. Dr Boer’s full report was not in evidence 12 before the Magistrate, nor before me.

55. Dr Barker referenced an earlier assessment he had performed on the appellant in November 2020. At that assessment, Dr Barker was accompanied by a psychologist, Ms Murray. Dr Barker and Ms Murray noted a background of neurodevelopment disorder and wrote that the appellant demonstrated “limited ability to understand and appreciate the consequences or seriousness of his actions”.

56. As part of his report, Dr Barker undertook a psychiatric assessment of the appellant on 23 May 2023. During the assessment interview, the appellant reportedly stated “I’m also 13 unfit to plead to court because I’m too scared to go to gaol” and “I don’t want to plead 14 unguilty. I just don’t feel like I’m up for the court again, I just get too nervous”.

57. Dr Barker applied the s 311 criteria in his report and the appellant highlighted the following: (a) Nature of charges: The appellant said he had been charged with “[f]amily violence… when I hit someone”, and said the choking charge meant “they assaulted someone… strangles”. (b) Enter a plea: The appellant indicated a guilty plea could mean “a year or two” in a mental health hospital. He said a not guilty plea means “that [the charges] they’re discharged… dismiss the charges”. (c) Understand proceeding: The appellant indicated the purpose of the proceeding was “helping people… by listening to other people and make sure they get the right help”.

11 First report of Dr Barker at par 228. 12 Dr Boer’s report was not in evidence. It was not tendered according to the transcript at first instance before the Magistrate and is consequently not in the appeal papers before me. Professor Hayes also refers to having seen only Dr Boer’s report to the extent extracted in Dr Barker’s first report. I note that, in any event, at p 2 of Dr Barker’s report that the appellant’s performance as strong as or better than 2% of individuals his age (ie in the lowest 2% of the population concerning IQ). 13 First report of Dr Barker at par 49. 14 First report of Dr Barker at par 144. (d) Follow proceeding: The appellant said he understood “nothing. I don’t know the questions”. However, Dr Barker also noted the appellant was “reasonably able to follow the current interview”. (e) Understand effect of evidence: The appellant said he was uncertain about the substantial effect of any evidence that may be given in support of the prosecution. (f) Give instructions: When asked if he could give instructions to his lawyer, the appellant claimed “I just tell them – fight for me… put me in a place where I’m safe… for a while… I’m not fit to plead… because too many disabilities… 15 hopefully it’s dismissed, I’ll never do it again”.

58. Dr Barker diagnosed the appellant with autism spectrum disorder, mild intellectual disability and unspecified schizophrenia spectrum and other psychotic disorder.

59. Dr Barker assessed the appellant as fit to plead and speculated that the appellant’s claims that he was unfit may have been motivated by a belief that this would lead to a more lenient outcome.

60. In my view, the first report of Dr Barker falls to be considered in light of Dr Barker’s second report, discussed immediately below. Dr Barker’s first report is of more limited evidential impact, once reviewed in light of Dr Barker’s supplementary and final report.

Dr Barker – second report

61. As referred to above, I note that Dr Barker subsequently provided a supplementary report, which was tendered and in evidence at the Magistrates Court.

62. As mentioned earlier at [54]-[55], Dr Barker referred to the earlier cognitive assessment conducted by Dr Boer. I pause to note again, that the full report of Dr Boer’s assessment was not before the Magistrate, and that the material available to the Magistrate from Dr 16 Boer’s report was confined to a three-paragraph extract set out in Dr Barker’s report.

63. Broadly, the supplementary report, as correctly summarised by the appellant, provided as follows: (a) The appellant’s fitness to plead in this case depends on the impact of the appellant’s intellectual disability;

15 Appellant submissions of 28 May 2024 at par 27. 16 First report of Dr Barker at pars 57-83. (b) An assessment of intellectual disability was outside Dr Barker’s expertise; (c) In his first report Dr Barker had placed “significant weight” on the assessment conducted by Dr Boer; (d) Dr Boer had used different tests and provided a different IQ score to Professor Hayes; (e) Dr Barker was not aware of how the tests conducted by Dr Boer and Professor Hayes differed, although he thought the test used by Dr Boer was more comprehensive. I note this was a matter Professor Hayes gave evidence about: 17 as discussed later in this judgment at [86]; (f) While outside his expertise as a psychiatrist, Dr Barker generally believed that it was possible for a person to underperform on an IQ test but not overperform. Again, I note this was a matter Professor Hayes gave evidence about: as 18 discussed later in this judgment at [88]-[89]; (g) Dr Barker acknowledged that Professor Hayes is a “highly qualified and experienced forensic psychologist and would no doubt be aware of the issues that I have raised above”; and (h) In his report Dr Barker had relied upon Professor Hayes’ opinion in R v Tuigamala [2007] NSWSC 493 (Tuigamala). Dr Barker presumed Professor Hayes had considered the matters raised in Tuigamala were not sufficient in 19 this case.

64. Importantly, in his supplementary report, Dr Barker concluded: Assuming that Professor Hayes’ psychometric testing is a true and accurate reflection of Mr Dillon-Nasr’s cognitive ability, then I would be inclined to concur with Professor Hayes’ opinion regarding Mr Dillon-Nasr’s fitness to plead.

65. In my view, this is a matter that requires quite some emphasis. Dr Barker quite properly conceded his lack of expertise in the assessment of intellectual disability and deferred to

17 Magistrates Court transcript at p 18(29)-(50). 18 Magistrates Court transcript at pp 19(46)-(47), 20(1)-(9). 19 Professor Hayes’ recommendations for the accused in Tuigamala are at [22] of that judgment and included appointing an interpreter to translate for the accused for the duration of trial, frequent explanations from the accused’s legal counsel as to what was happening in court, and recommendations for simplifying the style and form of questions put to the accused while he gave evidence in court. Professor Hayes on the assumption the testing was accurate; that he was inclined to concur with Professor Hayes.

Dr Barker – oral evidence

66. Of significance, in oral evidence, Dr Barker stated that he had a “somewhat longitudinal perspective” because he had previously assessed the appellant outside the context of court proceedings. When asked for clarification by the Magistrate on the limitations of psychometric testing, Dr Barker said that reliable testing would require testing which pre-dated criminal charges to avoid skewing of results. As a result of his longitudinal perspective from previously assessing the appellant, Dr Barker thought it possible the appellant may have underrepresented his true capability by not making as much effort as he might have in other circumstances.

67. Dr Barker noted he had not taken any steps to manage these concerns during the assessment. He said there were a “range of psychometric tests that can be used by a psychologist to examine effort but they’re not tests that are generally used by a psychiatrist”. Relevantly, I note these are discussed in the context of Professor Hayes’ evidence at [88]-[89].

68. Dr Barker was asked to explain how he reconciled the appellant’s answer in relation to the appellant’s understanding of the court process and Dr Barker’s opinion that the appellant was fit under s 311(1)(c). Dr Barker responded by describing the appellant’s response as a “fairly basic description of what happens” in court but noted that “most of us would be able to describe in a bit more detail exactly what happens in court”.

69. Dr Barker explained his reasoning in finding the appellant was fit to plead. Dr Barker referred to the history of fitness to plead and its origins in R v Presser [1958] VR 45, where a boy aged 14 but with a mental age of nine, was found to be fit. Based on this case, Dr Barker said his “general rule of thumb would be that if the person is able to consider the correct process at the level of a nine-year old then they would probably be fit to go through the court process.”

70. Dr Barker referred to the subsequent case of Tuigamala, where Professor Hayes had made a number of recommendations for that case which Dr Barker believed could assist the appellant to more readily participate in the course of the proceeding.

71. The appellant submitted that the nine-year old “rule of thumb” was applied in relation to other issues in the s 311 criteria in order to find the appellant fit to plead. Dr Barker was asked to reconcile his observation that the appellant was uncertain about the substantial effect of any evidence that may be given in support of the prosecution with his opinion that the appellant was fit to plead. The appellant submitted that Dr Barker’s opinion was “significantly reliant” on the assessed IQ of 70 provided by Dr Boer, “which would probably be in the order of a mental age of 12 to 13.” Dr Barker noted he had the “impression”, the appellant would be able to engage and follow what was happening, “at least in a general sense”, and that this, in conjunction with Dr Boer’s previous assessment, had informed his conclusion on fitness.

72. The appellant submitted that Dr Barker had conceded the differences between IQ test results were “outside my area of expertise and most properly should be considered by an appropriately qualified psychologist such as Professor Hayes.” Dr Barker confirmed his opinion, consistent with the supplementary report, was that the appellant was unfit “if the court were to prefer the testing from Professor Hayes.”

73. The appellant submitted that Dr Barker had confirmed he agreed with the contents of 20 Professor Hayes’ report. Dr Barker stated he was surprised by the 20-point differences in IQ results, and speculated that Professor Hayes may have used a shorter screening tool. Dr Barker claimed IQ results were usually within about five points of each other, but conceded that this was Professor Hayes’ area of expertise.

74. Importantly in my view, Dr Barker’s evidence must be assessed and analysed in light of the fact that Dr Barker conceded this was Professor Hayes’ area of expertise, and that Dr Barker conceded this was not his area of expertise. It is appropriate that I state here that I prefer the testing of Professor Hayes as discussed directly below and discussed later in my reasons at [105]-[109].

Professor Hayes

75. Professor Hayes, a forensic psychologist specialising in intellectual disability in the criminal justice system, provided a report dated 31 October 2023 and gave oral evidence 21 before the Magistrate. Professor Hayes referred to Dr Barker’s first report and the other material summarised above. Professor Hayes undertook an assessment of the appellant over a period of an hour, and assessed that the appellant was unfit. Professor Hayes 22 noted the licence and the relevant certificates.

20 Appellant submissions of 28 May 2024 at par 43; Magistrates Court transcript at p 12(6)-(9); supplementary report of Dr Barker. 21 Report of Professor Hayes at p 12. 22 Report of Professor Hayes at pp 4-5.

76. It is useful at this juncture to include a summary of the curriculum vitae (CV) of Professor Hayes. The abbreviated CV is as follows.

77. Professor Hayes has practiced as a forensic psychologist for over three decades and is a nationally and internationally recognised expert in forensic psychology, particularly in the field of intellectual disability. Professor Hayes is currently a Professor Emeritus at the Sydney Medical School at the University of Sydney and has been a Visiting Professor at the University of Bristol in the United Kingdom.

78. Professor Hayes is a fellow of a number of professional associations in the area of forensic psychology, including the International Association for the Scientific Study of Intellectual and Developmental Disabilities. Professor Hayes has published widely on persons with intellectual disabilities in the justice system, including in peer-reviewed journal articles, books, monographs and chapters in books. Professor Hayes has prepared hundreds of assessments for both accused persons and victims of crime in relation to criminal proceedings across Australia, including in this jurisdiction, and is experienced in giving expert testimony. Her experience in this regard spans multiple decades.

79. Professor Hayes administered the Kaufman Brief Intelligence Test, Second Edition (KBIT-2). The results reported at a level of 90% confidence that the appellant functions in the range of moderate intellectual disability and has a composite IQ score of 48. In my view, it is relevant and instructive to note the following table from Professor Hayes’ report demonstrating the confidence intervals regarding IQ: Score Confidence Percentile Age Interval Rank equivalent Yrs - months Verbal 52 47 – 62 0.1 7 – 9 Nonverbal 54 49 – 65 0.1 5 – 6 IQ Composite 48 43 – 57 <0.1 Not available Standard Score from the Manual

80. Professor Hayes then administered the Vineland Adaptive Behaviour Scales, Third Edition, which tests adaptive behaviour including the degree to which the appellant meets satisfactorily the culturally imposed demands of personal and social responsibility. The results reported at 95% confidence that the appellant functions in the range of severe disability for adaptive behaviour skills.

81. After conducting these tests, Professor Hayes applied the s 311 criteria. The appellant correctly summarised the conclusions in submissions, based on a table in the report: a. Nature of charges: the appellant said that the offences related to him assaulting his mother, and involved family violence. b. Enter a plea: When asked what “not guilty” meant he replied, “it means I’m not up for gaol or that.” Asked what “guilty” meant he replied, “you go back to Court again.” c. Understand proceeding: He understood that the proceeding in a basic way was an inquiry into whether he committed the offence. He could not explain why there were two sides in court. d. Follow proceedings: Mr Dillon said that he cannot follow what is said in Court and cannot pay attention. e. Understand effect of evidence. He said there was only one witness and “she did not listen much.” f. Give instructions: Mr Dillon said that his defence would be that he is unfit to plead guilty because of issues with his mental health.

82. Professor Hayes assessed the appellant as unfit, concluding that he failed to meet many of the s 311 criteria. Further, Professor Hayes stated that the appellant’s speech was difficult to understand and concluded that given the appellant’s low levels for receptive and expressive language, education about court processes would not bring him up to a 23 level where he could be fit to plead.

83. Professor Hayes was clear in expressing her view that regardless of would-be 24 assistance, the appellant would not thereby become fit to plead.

84. In my view, the words and phrases “would not”, “could not”, and “cannot”, for all intents and purposes are equivalent on this point, in the context of all the evidence in this case.

85. In oral evidence, Professor Hayes confirmed that the recommendations of support in the courtroom would not assist. Professor Hayes explained that she had assessed the appellant as functioning with perceptive and expressive language at an age of three years and ten months and was of the opinion that he was very concrete in his thinking.

86. Importantly, the appellant properly submitted that Professor Hayes had identified a number of reservations about relying on the bare IQ result from Dr Boer. First, Professor Hayes expressed concern that there could have been a practiced effect reflected in the result. Secondly, Professor Hayes noted the test required an in-person component but

23 Report of Professor Hayes at pp 9-10. 24 Report of Professor Hayes at p 9 that the test had been performed during the lockdown and may not have been based on 25 a complete assessment. Thirdly, Professor Hayes stated that the Wechsler Adult Intelligence Scale (WAIS-IV) test used by Dr Boer tended “to promote individuals to higher levels of ability and so it’s less reliable in the range of intellectual disability below a score of 70… So it’s likely that he would have obtained a higher score on WAIS-IV than he did on the [KBIT-2 test].”

87. In my view, on the evidence, reliance on the bare IQ result from Dr Boer, in circumstances where the full report was not available, is a forensically flawed approach. This is heightened by the use of the WAIS-IV test by Dr Boer.

88. Professor Hayes addressed the issue of malingering and stated she had no reason to believe the appellant was malingering. The appellant correctly summarised her reasons for this opinion: (a) Almost all of Professor Hayes’ clients indicate “they don’t want to go to jail” and that usually does not affect their performance. (b) Professor Hayes is very experienced and attuned to picking up abnormalities in performance. (c) The appellant performed on the tests, in a manner which was consistent with his presentation in terms of speech, memory, expression, receptive language and ability to pay attention, such that there was no reason to believe he was malingering. (d) Professor Hayes did not go back to easier questions because the appellant was consistent in the way that he answered the questions and when he “began to fail items”.

89. Professor Hayes noted there was a technique for testing underperformance that involved checking the consistency of test recipients in failing to answer questions. Professor Hayes stated that when the appellant was asked to answer questions at what she considered to be his genuine level, he consistently failed the questions. She stated this was different to malingering because in those circumstances people tended to just stop answering questions because they “don’t know what level they are aiming for.” This, in my view, is a significant matter that calls for the specific expertise of Professor Hayes.

25 The lockdown was apparently during the COVID-19 lockdown period.

90. Professor Hayes stated that an IQ of 48 was consistent with achieving a Certificate II in 26 cooking and completing year 12 studies. Professor Hayes noted that she did not believe an intermediary would address the communication issue if the appellant was found fit to plead as she had “seen it happen and it is not very successful”. I also note in this context that the Court of Appeal in Adams v DPP stated (at [191]), concerning intermediaries, that: Specifically, as a witness intermediary would never be imposed over the objection of an accused, and as it may be inferred that the applicant objects to the appointment of a witness intermediary, the assessment of whether the applicant is fit to be tried in the present case must be conducted on an assumption that a witness intermediary will not be available.

91. Professor Hayes was asked by the Magistrate about whether there were any concepts which could not be broken down in circumstances where the only allegation was that the appellant had hit his mother. Professor Hayes responded as follows concerning the nuances of a hearing: … there would still be legal argument. There would be questions put to him. There would be the issue of him taking the oath or affirmation. There would be the issue of him being able to say which of the evidence was true in his opinion, or not in his opinion, which involves concentration and memory, being able to remember what other people have said, being able to put that together with his own memories about whether the two mesh. So it’s not just simply he gets up in the witness box and says – somebody says to him, ‘Did you hit – hit your mother?’

92. In this context, I note that the prosecution conceded that Professor Hayes is undoubtedly very qualified and highly experienced. Further, the prosecution conceded that the appellant has an intellectual disability and that there is no dispute on the evidence that he has a low IQ. Additionally, the prosecution conceded, “looking at the evidence [holistically], that the appellant has difficulties, and difficulties in the criteria under section 27 311 of the Crimes Act.”

93. I underline here as a matter of long accepted principle that a court cannot and does not cede the ultimate question to an expert. It is for a court to determine the question, and the question to be determined is whether the presumption of fitness has been displaced. Nevertheless, expert evidence of the calibre of the expert evidence of Professor Hayes should not be rejected capriciously: see Taylor at 352. Such evidence is clearly of some forensic significance in this case.

26 Further, Professor Hayes was asked about whether she knew the appellant had a driver’s licence, and replied that she did: Magistrates Court transcript at p 23(34). I also note that at p 5 of Professor Hayes’ report that the appellant went to a special driving school for people with intellectual disabilities. 27 Supreme Court transcript at p 37(44)-(46). Evidence of Mr Dillon – the father of the appellant

94. Andrew Dillon, the appellant’s father, gave oral evidence. Mr Dillon explained that the appellant undertook a year 12 program at a special school which did not involve achieving a score-related certificate such as an Australian Tertiary Admission Rank (also known as an ATAR). Instead, the appellant received a certificate of accomplishment for attending classes suited to various levels of disability, which involved learning practical skills. These are skills for being somewhat self-sufficient in the community.

95. Mr Dillon answered questions about the appellant’s Certificate II in cooking. The certificate involved learning at-home skills such as how to boil an egg or how to make breakfast, and the father elaborated that the appellant had two carers looking after him as part of this training.

96. Mr Dillon gave evidence that the appellant received his driver’s licence after a “very long prolonged process”. Mr Dillon had to alert the appellant to things as the appellant was driving due to the appellant being “very narrow-minded”.

Consideration

Review of the appellant submissions

97. Counsel for the appellant submitted, in my view correctly, that the Magistrate was in error in finding the appellant fit to plead. I have considered counsel for the appellant’s submissions as follows.

98. First, counsel for the appellant submitted that the Magistrate was in error in rejecting the evidence of Professor Hayes and further submitted that Professor Hayes was the witness in court with the relevant expertise. Professor Hayes had assessed the appellant as unfit to plead. I accept this submission on the part of the appellant, as it accords with my view of the expert evidence of Professor Hayes as discussed further below at [105]-[109].

99. Second, counsel for the appellant submitted that the Magistrate was in error in deciding that the appellant was malingering. Counsel for the appellant submitted that Dr Barker had deferred to the expertise of Professor Hayes on that topic, and that Professor Hayes did not “miss the brief” as Professor Hayes considered the issue of malingering and answered the question in evidence. I accept this submission as it accords with my view of the evidence discussed below. In my view, Professor Hayes, on the evidence, was well aware of the potential issue of malingering, due to her expertise in the area, and had specifically guarded against it.

100. Third, the appellant submitted the Magistrate was in error in preferring his observations over the evidence of Professor Hayes. I accept this submission as discussed further below at [117]-[124]. In my view, the observations as described by the Magistrate in his judgment and relied upon by the Magistrate in his decision were not sufficient to 28 undermine the evidence of Professor Hayes, nor the rest of the evidence in this case.

101. Fourth, the appellant submitted the Magistrate was in error in emphasising the evidence that the appellant had achieved a driver’s licence, cooking certificate and finished year 12 (at a special school) over the evidence of Professor Hayes. I accept this submission as it accords with my view of the evidence as discussed further below at [125]-[129]. In my view, in the context of all the evidence in the case, the Magistrate undervalued the evidence of Professor Hayes in the process of synthesising the evidence and overvalued the evidence concerning the licence and certificates.

102. Fifth, the appellant submitted the Magistrate was in error in reasoning that an intermediary would assist in addressing the fitness issue. I accept this submission as it accords with my view of the evidence in this case, as discussed further below at [130]- [131] and further, accords with the Court of Appeal decision of Adams v DPP. Nevertheless, the issue remains whether the assistance of an intermediary was material or otherwise to the Magistrate’s decision. I am not persuaded that the question of the availability of an intermediary was material to the Magistrate’s decision: see my earlier discussion at [42] of this judgment.

103. Sixth, the appellant submitted the Magistrate failed to consider the impact of guardianship orders and the fact that the appellant would be deprived of the support of his appointed guardian as the guardian, his mother, was the complainant in the matter. I accept this submission as it accords with my view of the evidence as discussed further below at [132]-[138].

104. The appellant submitted it was understandable that the Magistrate was wary of being “fooled” by a malingering accused wishing to be found unfit, but submitted this did not justify rejecting the expert evidence which addressed that concern and concluded that the appellant was unfit. I accept this submission as it accords with my view of the evidence as further discussed below at [111]-[116].

28 Reasons of Magistrate at [43]: the appellant saying “bonjour”; the appellant saying his father’s middle name; and the appellant displaying his driver’s licence. The expertise of Professor Hayes

105. First, I underline the significant expertise of Professor Hayes in the context of this case, as set out in the summary of Professor Hayes’ abbreviated CV at [76]-[78].

106. I accept that the issue in this case concerning fitness was one of intellectual disability. I further accept that the expertise of Professor Hayes was specifically within this area of intellectual disability. Further, Dr Barker underlined in his evidence that issues concerning intellectual disability and related cognitive testing issues were outside his expertise. Such matters are the province of an appropriately qualified psychologist such as Professor Hayes.

107. The appellant submitted that Professor Hayes was the witness with relevant expertise and had formed the view that the appellant was unfit under the s 311 criteria. I agree this was a significant matter. Professor Hayes had the requisite relevant experience and had 29 assessed the appellant as unfit on the s 311 criteria.

108. Significantly, Dr Barker, upon reviewing the expert opinion of Professor Hayes, came to the conclusion that if the Court accepted Professor Hayes’ opinion as to IQ testing, he would agree with Professor Hayes. It is also noteworthy in this context that Professor Hayes’ opinion was consistent with the psychologist, Ms Falkiner, on the question of instructions. Further, I again underline that I accept Professor Hayes’ opinion as to IQ testing.

109. In my view, the weight of the expert evidence, along with and in the context of all the evidence in the case, pointed towards the appellant being unfit to plead on the balance of probabilities.

110. It is now convenient at this juncture, that I further specifically address the asserted errors and the relevant evidence.

The question of malingering

111. I accept the appellant’s submission that the Magistrate erred in rejecting the expert evidence of Professor Hayes on the basis of the Magistrate’s expressed concern about malingering.

29 I also note that there is a distinction between the findings of a report set out in apparently short form and the in-depth process of in-person assessment which has contributed to the production of the report.

112. Professor Hayes was cross-examined on this issue and in my view gave cogent expert evidence contrary to the appellant malingering, while also addressing the asserted suggestion of malingering that was made in Dr Barker’s first report: Prosecutor: Part of your summary of Dr Barker’s opinion in your report is that he opined that it may be the case that [the appellant’s] claims that he is unfit are motivated by a belief this may lead to a more lenient outcome […] and in Dr Barker’s report there’s a reference on page 2 of that report that the [appellant] had said to him that he was unfit to plead because he – essentially to the effect he was too scared to go to jail. […] So doesn’t that call for some concern that the [appellant] may – the person that you’re interviewing may deliberately underperform to attempt to lead your conclusion to that they’re unfit? Hayes: Almost all of my clients indicate that they don’t want to go to jail and that usually does not affect their performance on the …(inaudible)… secondly, I am very experienced and I’m also very attuned to picking up any anomalies in what the person is saying or how they are performing. [The appellant] performed on the tests in a manner which was consistent with his presentation in my office in terms of his speech, his memory, his expression, his receptive language, his ability to pay attention, and, you know, at best there was no reason that I had to believe that he was malingering. Prosecutor: And other than those observations, is there anything else that you did in that interview to manage the risk that there may be dishonesty from the subject of the interview? Hayes: It’s usual to ask questions in a variety of different formats and to come back to those questions to see if it’s consistent. If there’s any suspicion that I have that they are malingering during testing, I go back to easier questions and if they fail those when they [passed] more difficult ones, then I double check for malingering. Prosecutor: And did anything like that happen during your interview with [the appellant]? Hayes: I didn’t go back to easier questions because he was consistent in his – the way that he answered the questions and when he began to fail items that was consistent as well. (Emphasis added by this Court.)

113. Tellingly, in my view, the Magistrate did not acknowledge in his reasons that Dr Barker had deferred to the expertise of Professor Hayes. Having reviewed the Magistrate’s reasons, it is clear that the reasons make no specific reference to Dr Barker deferring to Professor Hayes’ expertise, in the manner expressed in both the supplementary report and Dr Barker’s oral evidence. There is reference at [19] of the Magistrate’s reasons to Dr Barker conceding IQ testing and intellectual disability was not his primary area of 30 expertise, as follows: Dr Barker conceded that as a psychiatrist the administration of and assessment of IQ test was not within his primary area of expertise, and that intellectual disability was more the domain of a psychologist rather than a psychiatrist.

114. That is the extent of the reference, and in my view, it is insufficient in the context of this 31 case and taking into account the pressures on Magistrates Courts.

115. On my assessment of the evidence, it is difficult to ignore that Professor Hayes, the acknowledged expert on this topic, gave clear evidence that any issue of malingering did not affect the results obtained by her analysis in relation to the s 311 criteria: Magistrate: You said before – you were asked a question by the prosecutor about whether there is a risk of underperformance and I’m going to go to the other half of my life, which is workers compensation where we know through traditionally and experience that in a compensation setting, often a worker may produce a worse outcome on testing than they do in real life. That’s why video film is often taken of workers in the hope they’ll be doing something they told the doctor’s they couldn’t do. You said that it doesn’t affect performance. There’s no objective way of checking that though, is there? Hayes: There is in the sense, your Honour, that you look at the test results, [the appellant] has to fail four items in a row before I discontinue. So it’s not a matter of just not answering or failing one here, failing one there. He instantly, when he got to what I considered to be his genuine level, failed four items in a row. He’d failed one or two previously. Most people when they malinger on a psychometric test, they tend to just stop answering pretty quickly. They don’t know what level they are aiming for. As far as I’m concerned, his levels – well, first of all, the levels were consistent between verbal and non-verbal, which is extremely difficult to manufacture …(inaudible)… if I could even though I’ve been administering this test for years and years. You’ve got to know when to start failing and you’ve got to know that in accordance with your age peer group. So it’s not an easy thing to fake that and not be [picked] – picked up. (Emphasis added by this Court.)

116. Professor Hayes made it clear in answering the question from the Magistrate concerning workers’ compensation “video film” for court, that it is not easy to fake intellectual 32 disability without being discovered. Further Professor Hayes made it clear that it “is

30 At this paragraph the Magistrate also footnoted the supplementary report. No further comment is made about the supplementary report and there is no indication from the Magistrate acknowledging that Dr Barker appropriately deferred to Professor Hayes’ expertise in this specific area concerning IQ. 31 Alexander at [21]. 32 Magistrates Court transcript at pp 22(30)-(47), 23(1)-(2). extremely difficult to manufacture”, in circumstances where the levels were consistent, 33 in the appellant’s case, between his verbal and non-verbal levels.

The observations of the Magistrate

117. It is clear, on my assessment of the evidence, that the Magistrate rejected the expert evidence of Professor Hayes on the basis primarily of his own observations of the appellant in court and the licence and certificates.

118. Undoubtedly, the Magistrate was entitled to consider his observations of the appellant. That is an unassailable proposition. This Court cannot and does not cavil with that glaringly obvious legal proposition.

119. The Magistrate had this to say under the heading “Cannot follow the course of the 34 proceedings”. I note this did not address the instructions question: s 311(1)(f). 40. The defendant reported to Professor Hayes that he could not follow what was happening in court because he has “got disabilities in my head”. 41. The account to Professor Hayes is entirely inconsistent with my observations of the defendant in court. 42. His interactions were intellectually (whilst not necessarily socially) appropriate or appropriate in terms of the normal routines of a court. 43. Three examples readily come to mind: (a) When his father was sworn to give evidence, he only provided his first and last names. The defendant interjected, telling his father that he had to give all of his names including his middle name… (b) When I asked Professor Hayes about whether the defendant had a driver’s licence, he produced a licence to me and proudly informed me that he did have a driver’s licence. (c) When I used the analogy that if the defendant was given a word in French he might not understand it, but may be able to if its meaning was explained to him, the defendant volunteered “bonjour” completely unprompted. 44. The defendant 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 but is not required to understand the purpose of all the various court formalities. The defendant’s behaviour in the course of the

33 Magistrates Court transcript at p 22(30)-(47). 34 The Magistrate’s decision includes a section headed “Cannot give instructions to his lawyers” (at [51]-[53]), however this section does no more than summarise the evidence from Professor Hayes, Dr Barker and Ms Falkiner in relation to this criterion. There is no analysis of the evidence concerning instructions in accordance with s 311(1)(f). hearing demonstrated that he was not only paying attention but understood what was being discussed. 45. The fact that the defendant’s mental disorder may produce behaviour that will disrupt the orderly flow of a trial or hearing does not render him unfit to stand trial and in this case my own observations informed me that the defendant was clearly following what was going on in court. This is in significant contrast to the subjective position given by him to Professor Hayes. To some extent that discrepancy causes me to doubt that the defendant was truly forthcoming with Professor Hayes. (Footnotes omitted, emphasis added by this Court.)

120. Counsel for the appellant submitted that while those outbursts may be considered timely, the proposition that they were “intellectually appropriate” was tenuous because the outbursts were examples of the appellant demonstrating a superficial understanding of proceedings. In my view, after my assessment and review of the entire Court record, there is force to this submission. The interjection of one French word, “bonjour”, could not be said to be particularly “intellectually” revealing on the question of fitness. In 35 context, in my view, it may be considered childish.

121. Further, in my view, there is a critical distinction that must be made here. There may be both a superficial and somewhat childish understanding and at the same time, a fundamental lack of the necessary deeper cognition for fitness to plead. At the risk of repetition, there is a critical distinction between the surface appearance and the real substance of understanding and this is a distinction that cannot go unrecognised in discussing fitness to plead.

122. This critical distinction was emphasised by Professor Hayes in response to questions 36 from the Magistrate: Magistrate: Professor Hayes, one thing that does concern me is that on your record [the appellant has] told you he intended to plead not guilty because he’s not fit to plead. That seems to be---? […] That seems to me a fairly remarkable insight for someone who’s not fit to plead. Can you comment on that? Hayes: Your Honour, I think he’s just repeating what other people have told him, that the two are linked. Clearly, he doesn’t understand that if there’s a special hearing, he will be assumed to have pled not – not guilty.

123. An analogous distinction was made by the High Court in R v Muldrock [2011] HCA 39; 244 CLR 120 at [55] (albeit in the context of sentencing rather than fitness), discussing unchallenged evidence of experts concerning intellectual disability alongside the

35 Nor is the issue of the father’s middle name, nor “proudly [informing] [the Magistrate] that he [the appellant] did have a driver’s licence”. 36 Magistrates Court transcript at p 22(14)-(22). superficial understanding of a mentally impaired adult. I underline that these matters are not necessarily binary and require deeper analysis on the part of a judicial officer.

124. Further, on the question of the appellant’s demeanour, the High Court has emphasised the well-known and universally accepted scientific research that has revealed the difficulties and inaccuracies in assessing credibility and reliability: Fennell v The Queen [2019] HCA 37; 93 ALJR 1219 at [81]. The High Court further stated that “an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of 37 evidence with known facts, is worth pounds of demeanour”: Fox v Percy at [30]. On my review of the whole of the evidence, I am not persuaded that the observations relied upon by the Magistrate undermine the other relevant evidence in this case, including the expert evidence from Professor Hayes and Ms Falkiner.

The licence and the certificates

125. The Magistrate concluded that evidence that the appellant had achieved a driver’s licence, cooking certificate and finished year 12 at a special school, meant the appellant “is able to learn reasonably complex matters if they are explained to him in an appropriate 38 way”.

126. First, counsel for the appellant submitted the appellant’s achievements were not “reasonably complex” matters. Counsel for the appellant emphasised evidence given by the appellant’s father that the driver’s licence course was a particularly prolonged process.

127. Second, counsel for the appellant submitted the Magistrate’s reasoning ignored the results of expert psychometric testing.

128. Third, counsel for the appellant submitted the reasoning ignored the dynamic reality of court proceedings. Counsel for the appellant submitted that this was one of the reasons why Professor Hayes had found the appellant unfit, because of his “very low levels for receptive and expressive language skills.”

129. I note, as earlier discussed in this judgment at [90], Professor Hayes is an avowed expert in this area. Dr Barker appropriately deferred to Professor Hayes in her specific area of 39 expertise in IQ testing and intellectual disability. Professor Hayes did not consider the

37 Quoting Atkin LJ in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") (1924) 20 Ll L Rep 140 at 152. See also The King v ZT [2025] HCA 9; 281 CLR 137 at [75]. 38 Reasons of Magistrate at [67]. 39 Supplementary report of Dr Barker; Magistrates Court transcript at p 11(11)-(16). driver’s licence and cooking and special school certificates contradicted an IQ of 48. Nor do I, on my review of all the evidence.

Intermediary

130. In light of the Court of Appeal decision in Adams v DPP, the Magistrate was not entitled to take into account the availability of an intermediary if not satisfied the appellant would consent to having an intermediary appointed: see Adams v DPP at [190].

131. Nevertheless, in any event, I am not persuaded that the availability or otherwise of an intermediary was material to the Magistrate’s decision. This issue can be left aside.

Guardianship

132. The appellant submitted that the appellant’s mother, the complainant, was his appointed guardian and submitted this fact created practical difficulties in the assistance that his guardian could provide in his case. That is so, though of course this factor alone cannot determine this case.

133. The appellant submitted that Ms Falkiner had noted that the appellant had difficulties with speech and his “capacity to instruct a lawyer is primarily reliant on his guardian to translate, and that his ability to instruct is also inhibited by his belief that he is not allowed to change his instructions irrespective of the circumstance”. Ms Falkiner further noted that “it appears that [the appellant’s] capacity in respect to fitness has been dependent on his guardian’s assistance historically (translating, prompting and preparing him), and as such it appears that on balance, he is not fit to plead”. The appellant submitted that this was consistent with the opinion of Professor Hayes, who found the appellant unfit on the basis of his low levels of receptive and expressive language. I accept that these aspects of the evidence in this case are broadly consistent.

134. The appellant submitted that the Magistrate gave no consideration of the impact on the appellant of his guardian being the complainant in this matter in relation to fitness to plead. I take this factor into account as there is force to this submission on my review of the Magistrate’s decision.

135. In relation to guardianship orders, I note that Refshauge J correctly observed in Fisher at [29](19) that a guardianship order is not determinative of the question of fitness to plead: That a Guardianship Order has been made in respect of an accused does not prevent an accused from giving instructions to his or her counsel nor render any such instructions ineffective or insignificant and, having been made on different criteria, is not determinative of the question of the accused’s fitness to plead: R v Bailiff (at 24-5; [102] to [110]). (Emphasis added by this Court.)

136. Further, in Adams v DPP at [137], the ACT Court of Appeal concisely summarised the question of guardianship orders as being relevant but not determinative: The fact that an accused person is subject to a Guardianship Order is relevant but not determinative: R v Fisher [2011] ACTSC 56; 210 A Crim R 199 at [29(19)].

137. Additionally, in R v Bailiff [2010] ACTSC 54 at [110], Penfold J stated, in the context of the evidence in that case, that a guardianship order is not legally inconsistent with fitness to plead: In summary, the making of a Guardianship Order does not directly affect [the accused’s] physical or mental capacity to give instructions; it might restrict the scope for a lawyer to take account of [the accused’s] instructions where they appear to be significantly adverse to his interests, but it does not eliminate the scope for his instructions to be accepted and acted on (s 4 of the Guardianship Act); nor can it be said, given that the Guardianship Order is made on different criteria, that the making or existence of a Guardianship Order is legally inconsistent with a finding of fitness to plead.

138. Therefore, in summary, the law is clear that a guardianship order, of itself, does not prevent an accused from giving instructions. Further, the fact that the appellant is subject to a guardianship order is relevant but not determinative. Nevertheless, the evidence here is that Ms Falkiner’s report underlined the difficulties with the appellant’s form of speech and the historically significant reliance on the guardian (the appellant’s mother and at the same time the complainant in this case) to assist in the obtaining of whatever instructions it was possible to obtain from the appellant; that is “translating”, “prompting” 40 and “preparing” in the area of giving instructions by the appellant’s mother.

Review of the prosecution submissions

139. First, the prosecution correctly submitted that although there was no dispute that the appellant had an intellectual disability, the issue of the appellant’s IQ level was not of itself determinative of fitness to plead. That submission is correct. Additionally, I note in this context of the appellant’s actual IQ, that the Magistrate was in error in stating in his decision that the IQ level assessed by Professor Hayes was 42 (at [58] of the reasons of the Magistrate). It was not. It was 48, as mentioned earlier in the Magistrate’s decision at [23].

140. Further, the prosecution submitted that the Magistrate had correctly considered the criteria in s 311(1) and whether the evidence demonstrated the extent of the appellant’s

40 Report of Ms Falkiner at pp 6-7. intellectual impairment was such that he could not do one or more of the listed criteria. The prosecution submitted that fitness to plead is not determined simply by reference to a defendant’s level of intellect: Fisher at [29]. I accept that uncontroversial submission that fitness to plead is not to be determined in such a simplistic manner.

141. Second, the prosecution correctly submitted that the fact that Professor Hayes was a highly qualified psychologist did not oblige the Magistrate to accept her opinion, nor was the Magistrate obliged to ignore other evidence which may have cast doubt or qualified that opinion. I accept that the fact that Professor Hayes was highly qualified did not of itself oblige or mandate that the Magistrate must accept the opinion of Professor Hayes and ignore other evidence. Nevertheless, in my view, the Magistrate tended to undervalue the expert evidence of Professor Hayes in his decision. I will have more to say about this later in this judgment at [154].

142. Third, the prosecution submitted that Professor Hayes’ approach was primarily focused on the appellant’s limitations in comprehension rather than whether he could understand in terms of the relevant statutory criteria. Further, the prosecution submitted that at best, Professor Hayes’ report supported the view that there were difficulties in the appellant’s understanding. I do not accept the prosecution’s characterisation of Professor Hayes’ report. My analysis of Professor Hayes’ report does not accord with the limited approach submitted for by the prosecution. I do not accept the statement made by the Magistrate 41 that Professor Hayes’ approach “miscarried”.

143. Professor Hayes concluded: Given his very low levels for receptive and expressive language, I am of the opinion that education about Court processes and fitness issues would not bring Mr Dillon’s understanding up to a level where he would be fit to plead.

144. I have reviewed and analysed this statement in the context of the entirety of Professor Hayes’ report and the entirety of the evidence. I am of the view that the appellant could not be brought to the level of his being fit to plead: see specifically s 311(1)(f) regarding giving instructions.

145. Fourth, the prosecution submitted that the Magistrate’s determination was supported by the other expert evidence and that the appellant’s ability to understand the nature of the charges and the proceedings was also reflected in the earlier report of Ms Falkiner. Nevertheless, I underline that Ms Falkiner concluded that the appellant was not fit to

41 Reasons of Magistrate at [26]. plead. I also underline that the grounds of appeal centre on s 311(1)(f) and the giving of instructions.

146. Fifth, the prosecution submitted that the Magistrate’s observations of his interactions with the appellant during the hearing confirmed the appellant’s ability to understand and follow the nature and course of the proceedings, and submitted that deference should be paid 43 to his Honour’s considerable advantage in this regard. I have not accepted this submission, as discussed earlier in this judgment at [117]-[124] concerning s 311(1)(f).

147. In this regard, I underline, in accordance with the relevant authorities, that this appeal 44 court must pay due heed to the advantage the Magistrate had in seeing the witnesses. Nevertheless, the authorities are also clear that a court must not thereby shrink from or evade giving effect to the appeal court’s decision after a real review of the evidence. This Court cannot evade that task.

148. Sixth, the prosecution submitted the appellant’s complaint relating to the Magistrate’s reference to “collateral issues”, specifically the ability to drive and attend special school, did not demonstrate error. The prosecution correctly and appropriately conceded that the fact the appellant could learn to drive and attend school did not of itself mean the 45 appellant was fit to plead. That was accepted by the prosecution. However, the prosecution submitted when all of these circumstances were considered and taken together with the appellant’s understanding of the charges and of the criminal process, there was no basis to conclude the appellant’s intellectual functioning rendered him unfit to plead. I do not accept this submission for the reasons discussed at length below at [154]. 46

149. A seventh point was made by the prosecution primarily concerning intermediaries. That point is no longer relevant for present purposes as I have determined this question was not material to the Magistrate’s decision.

150. An eighth point was made by the prosecution concerning guardianship. I have already discussed the guardianship issue earlier at [132] to [138].

42 Report of Ms Falkiner at p 7. 43 Prosecution submissions of 6 June 2024 at par 27. 44 Warren v Coombes at 551; Fox v Percy at [23]; Peverill v Crampton at [24]; discussed earlier at [13]-[14]. 45 Prosecution submissions of 6 June 2024 at par 28. 46 The prosecution also discussed court breaks. Conclusion of consideration

151. In final oral submissions, counsel for the appellant clarified that the appellant was principally relying on alleged errors in reasoning in relation to the following subsections of s 311: (c) (“understand that the proceeding is an inquiry about whether the person committed the offence”), (d) (“follow the course of the proceeding”), and (f) (“give 47 instructions to the person’s lawyer”). The appellant further submitted that (f) provided the clearest criterion against which the appellant failed. I accept this submission in relation to s 311(1)(f).

152. On the evidence before me, I accept that s 311(1)(f) is not met and that therefore the appellant is unfit to plead. That is, I find on the balance of probabilities that the appellant’s mental processes are disordered and impaired to the extent that the appellant cannot give instructions in accordance with s 311(1)(f).

Ground 1: The Magistrate erred in finding the appellant fit to plead

153. As is clear from the foregoing, I uphold this ground. As this ground is upheld and concerns the ultimate question, there is no need to separately consider the other grounds.

154. In summary, I uphold this ground after a ‘real review’ of the evidence. This is because of the coalescence of the following reasons: (a) Professor Hayes is a forensic psychologist who specialises in testing for 48 intellectual disability and its impact on fitness. Her expertise in this area is of real forensic significance in this case. (b) Professor Hayes has practiced as a forensic psychologist for over three decades, and is a nationally and internationally recognised expert in intellectual disability and has published widely on the area of people with intellectual 49 disabilities in the justice system. Professor Hayes’ significant expertise in the area of people with intellectual disabilities in the justice system is relevant, significant and important in this case. (c) Professor Hayes assessed the appellant as functioning at a moderate intellectual disability with a composite IQ score of 48 (see [79] of this judgment for test and level of confidence). It is noteworthy in this context that the

47 Supreme Court transcript at p 11(4)-(25). 48 Report of Professor Hayes at p 12. 49 Report of Professor Hayes at p 12. Magistrate made an error in this regard and referred to an IQ of 42 in his decision at [58] (although referring to an IQ of 48 earlier in his decision). (d) Professor Hayes assessed the appellant as functioning in the range of severe disability for adaptive behaviour skills (see [80] of this judgment for test and level of confidence). (e) Professor Hayes assessed the appellant as unfit because he failed to meet s 311 criteria (see [82] of this judgment). (f) Professor Hayes confirmed that the recommendations of support in the courtroom would not assist as the appellant was functioning in important respects at the age of just under four years’ old, that is, at three years and ten months. (g) Professor Hayes expressed significant and important reservations, which I accept, about the IQ result from Dr Boer (see [86] of this judgment). (h) Professor Hayes, in my view, comprehensively addressed the “malingering” concerns (see [88]-[89] of this judgment). (i) A composite IQ of 48, in my view, on the evidence before me, is consistent with a certificate in cooking and completion of year 12 and a driver’s licence (see [90] of this judgment). (j) Dr Barker conceded that differences between IQ tests was an area of expertise outside his area of expertise (see [72] of this judgment). (k) Dr Barker confirmed his opinion in his supplementary report that the appellant’s fitness to plead in this case was dependent on the impact of the appellant’s intellectual disability (see [63](a) of this judgment). (l) Dr Barker confirmed that an assessment of intellectual disability was outside his expertise. He also stated that Professor Hayes is a “highly qualified and experienced forensic psychologist and would no doubt be aware of the issues that I have raised”, being underperforming, overperforming and malingering (see [63](g) of this judgment). (m) Dr Barker concluded that, assuming Professor Hayes’ psychometric testing was a true and accurate reflection of the appellant’s cognitive ability, he was inclined to agree with Professor Hayes’ opinion that the appellant is not fit to plead (see [64] of this judgment). (n) Dr Barker’s deferral to Professor Hayes on the issue of intellectual disability (“assuming that Professor Hayes’ psychometric testing is a true and accurate reflection of [the appellant’s] cognitive ability, then I would be inclined to concur with Professor Hayes’ opinion regarding [the appellant’s] fitness to plead”) was appropriate, as the assessment of intellectual disability was outside Dr Barker’s expertise (see [63](b) of this judgment). Conversely, the question of intellectual disability was very much within Professor Hayes’ expertise. The Magistrate, in his reasons, did not refer to Dr Barker’s deferral to the expertise of Professor Hayes (see [113]-[114] of this judgment). (o) Dr Barker confirmed his opinion in oral evidence, consistent with his supplementary report, that the appellant was unfit “if the court were to prefer the testing from Professor Hayes” (see [72] of this judgment). I have made it clear throughout my reasons that I prefer the testing by Professor Hayes. (p) In my view, reliance on the bare IQ result from Dr Boer was flawed, because it was in circumstances where the full report was not available to Dr Barker nor to the Magistrate (see [87] of this judgment). (q) In my view, alongside the evidence of Professor Hayes, the evidence of Mr Dillon, the father of the appellant, assisted in placing the completion of year 12 (at a special school), the cooking certificate and driving licence in proper evidential context (see [94]-[96] of this judgment). (r) The Magistrate’s overemphasis, in his assessment, of the significance of the cooking certificate, completion of year 12 at a special school, and driver’s licence through a special school was, in my view, in error. Further, the significance of that evidence, in the context of my review of all the evidence, was in my view, inflated by the Magistrate. The Magistrate, when synthesising all the evidence, undervalued and consequently eschewed the expert evidence of Professor Hayes. (s) The Magistrate was in error, in my view, in not considering the significance of the guardianship issue. The guardian in this case was also the complainant, the appellant’s mother (see [132]-[138] of this judgment). This was an unusual feature of this case. (t) During the assessment by Ms Falkiner, the appellant was childlike in his behaviour (see [46] of this judgment). Ms Falkiner importantly expressed the opinion that, taking into account the appellant’s difficulties with speech, the appellant’s capacity to instruct a lawyer was historically reliant on his guardian (his mother and the complainant in this matter) translating for him, prompting 50 him and preparing him (see [48]-[51] of this judgment). (u) While, of course, the Magistrate was entitled to consider his own observations and should, I do not accept that the observations of the appellant highlighted by the Magistrate (including, in summary form: the appellant saying “bonjour”; the father’s middle name; or the appellant showing the Magistrate his licence) were “intellectually revealing”; rather, to my analysis, these interjections were more 51 childlike than revealing of a higher IQ. The behaviour of the appellant, in my view, was more in line with the evidence of Ms Falkiner and Professor Hayes (see [120]-[124] of this judgment). See also the High Court emphasising well-established principle in The King v ZT [2025] HCA 9; 281 CLR 137 at [75] and Fox v Percy at [30] concerning the importance of intrinsic merit in the evidence over demeanour simpliciter. (v) The Magistrate erroneously observed at [58] of his reasons (under the heading “Battle of the IQ tests”), that Professor Hayes in the report of 31 October 2023 recorded the appellant as having an IQ level of 42 based on her testing. This was a factual error on the part of the Magistrate as to the IQ figure. The IQ figure 52 in question was 48, not 42. The Magistrate erroneously contrasted “an IQ level of 42” with the previous testing of Ms Falkiner and the testing done by Dr Boer 53 in 2020. (w) In answer to a series of questions asked of Professor Hayes at first instance concerning the assistance of an intermediary or counsel, I note the following exchange: Defendant: Is it also your view that legal education wouldn’t assist in this case? Hayes: Well, I’m not being flippant here but it would be like trying to give legal education to a pre-schooler. (x) Overall in my view, the “cannot” threshold is met in respect of s 311(1)(f) and the giving of instructions. The “cannot” issue is further discussed below.

50 Report of Ms Falkiner at pp 6-7. 51 I also note other interjections from my review of the evidence, including: at p 29(41) of the Magistrates Court transcript, stating in relation to his father, “Yes, he beeps the horn all the time…”; at p 33(31), stating, “Yes, but I’m not in my mum’s house now”; at p 35(14)-(15), stating, “You were saying about – there’s two things – so fit not to plead and something something. I can’t remember”; and at p 42, a discussion about glasses. 52 Report of Professor Hayes at p 6. 53 This recording of the IQ level as 42 was repeated in the prosecution submissions of 6 June 2024 at par 20. The “cannot” threshold

155. I emphasise that a person is unfit to plead in accordance with s 311 if a person “cannot” give instructions to the person’s lawyer: s 311(1)(f).

156. Additionally to the evidence discussed above at [154], the following evidence is relevant as to whether the plaintiff “cannot” give instructions.

Professor Hayes’ report

157. Professor Hayes noted the appellant had difficulty maintaining focus during his 54 assessment and was easily distracted.

158. Professor Hayes made an assessment that the appellant had a composite IQ of 48 (lower than 99.9% of his age peers). Professor Hayes noted the appellant scored poorly in terms of socialisation and communication as adaptive interpersonal skills, in the range 55 of skill levels expected of a 2-year-old to a 6-year-old.

159. Professor Hayes made observations in relation to each of the s 311 criteria, and I note made observations specifically concerning s 311(1)(f), which concerns the ground of 56 appeal in this case.

160. Professor Hayes underlined the appellant’s inability to retain information which was explained to him multiple times in previous medical assessments, and observed that he engaged in inappropriate and immature behaviour and that it was sometimes difficult to 57 keep him focused on the questions.

Oral evidence of Professor Hayes

161. Professor Hayes affirmed in her evidence that the appellant’s communication levels, including perceptive and expressive language, are very low, and that the appellant is 58 concrete in his thinking. Professor Hayes opined that legal education or an intermediary would not assist the appellant enough to reach a level which would satisfy the fitness to 59 plead criteria. She noted that the appellant could not follow what was happening in court or answer questions asked of him without getting distracted, gave a garbled

54 Report of Professor Hayes at p 4. 55 Report of Professor Hayes at pp 6-7. 56 Report of Professor Hayes at p 8. 57 Report of Professor Hayes at p 9. 58 Magistrates Court transcript at p 18(7)-(11). 59 Magistrates Court transcript at p 18(13)-(16). response on giving instructions to lawyers, and would sometimes just repeat what other 60 people had told him without deeper understanding.

Ms Falkiner’s report

162. Ms Falkiner noted that the appellant’s speech form is difficult to understand and that his speech content is consistent with experiencing intellectual disability. She observed the 61 appellant was childlike in behaviour and required frequent redirection and clarification.

163. Ms Falkiner found the appellant could not answer general questions about the purpose of court proceedings, had said to her that he does not listen in court, and erroneously 62 denied having been to court before.

164. Ms Falkiner recorded observations from the appellant’s mother that she has to “translate”, “prompt” and “prepare” the appellant when he meets with his lawyer; must undertake a large amount of preparation to prepare him for court; and that the appellant 63 still struggles to follow court rules even with her assistance.

165. Ms Falkiner stated that it was her opinion the appellant was likely to have functional difficulties in social and occupational functioning. She concluded that it was unlikely that the appellant would have the capacity to instruct his lawyer without reliance on his 64 mother. 65 Letter of Karen Read

166. In a letter to the Magistrate dated 18 April 2023, Karen Read, a behaviour support practitioner, observed that the appellant had low adaptive behaviour functioning skills 66 and a limited ability to comprehend the complexities of the criminal justice system. Ms Read opined that the appellant is unable to effectively advocate for himself and is easily led, overwhelmed and confused. This evidence is consistent with the evidence of Professor Hayes and Ms Falkiner.

Overall conclusion on “cannot”

167. In this regard, I note that the appellant submitted that the extent of the appellant’s disability meant he would be unable to provide instructions to the standard required for

60 Magistrates Court transcript at pp 21(1)-(18), 22(18)-(22). 61 Report of Ms Falkiner at p 2. 62 Report of Ms Falkiner at p 5. 63 Report of Ms Falkiner at pp 6-7. 64 Report of Ms Falkiner at p 7. 65 Exhibit 5 at first instance. 66 Exhibit 6 at first instance. the appellant to have a fair trial, notwithstanding any assistance from counsel or an 67 intermediary. The appellant referred to Professor Hayes’ evidence, which I accept, that the appellant’s composite IQ of 48 meant no amount of assistance from an intermediary would assist. The appellant also submitted that the evidence, on balance, pointed towards the appellant being unable to give instructions, and referred to the evidence of Professor Hayes, Ms Falkiner and Dr Barker. By way of example, Professor Hayes highlighted that the appellant, inexplicably, “intended to tell his solicitor to ‘get the statement of what I did last year’.” The appellant “could not explain how this was 68 relevant.” Dr Barker, on the issue of instructions, highlighted that the appellant stated, 69 “I just tell them – fight for me… put me in a place where I’m safe”. As stated by McCallum CJ in DPP v Adams, at [65]-[69], the opinions of experts, particularly if uncontradicted, “plainly warrant respectful consideration” and that “in the absence of any compelling reason to reject the expert medical evidence, the Court should accept it”.

168. In my view, there was not a compelling reason to reject expert evidence in this case; specifically, there was not a compelling reason to reject the evidence of Professor 70 Hayes. When all the evidence is taken into account, in my view, the prosecution’s 71 “different threshold” submission is not made out. This Court applies the threshold taking into account all the evidence in this case. The prosecution submitted that the expert evidence of Professor Hayes and Ms Falkiner on “giving and receiving instructions to a lawyer” should be treated with caution and assessed “in the context of the Court’s distinct 72 legal expertise in the nature of criminal proceedings”. In my view, taking into account this Court’s distinct legal expertise in the nature of criminal proceedings (as the prosecution correctly contends I should), the appellant cannot be said to meet the test of capacity in relation to the giving of instructions under s 311(1)(f), as set out in Fisher.

169. In my view, the submissions of the appellant, after my real review of all the evidence, carry force on the issue of instructions under s 311(1)(f); and in accordance with the principles enunciated in Fisher.

170. On the other hand, the prosecution submitted that the appellant’s submissions on the appellant’s ability to give instructions suffered from a “significant deficiency”, because no

67 Appellant submissions of 2 July 2024 at par 12. 68 Report of Professor Hayes at p 9. 69 First report of Dr Barker at p 46. 70 Let alone on the basis the Magistrate determined: see [117]-[124] of this judgment. 71 Prosecution submissions of 6 June 2024 at pars 23-25; prosecution submissions of 17 July 2024 at pars 4-5; prosecution submissions of 24 October 2025 at par 5. 72 Prosecution submissions of 17 July 2024 at par 9; prosecution submissions of 24 October 2025 at par 5. evidence had been led of observations made by the appellant’s legal representatives in regard to taking instructions from the appellant. The prosecution correctly and properly conceded that the absence of such evidence could not be used to draw an adverse inference or as proof of the appellant’s fitness.

171. In my view, it is relevant, useful and important to have evidence before the court of observations made by the appellant’s solicitor in attempting to obtain instructions: see Victors at [25]. In the usual case, courts expect such evidence. Nevertheless, the difference in this case is the highly unusual circumstance that the person who historically assisted the appellant in the area of translating, prompting and preparing in relation to instructions, in so far as his mother could (consistent with the evidence of Professor Hayes), was both the complainant in this case and also his mother. The appellant’s mother was therefore self-evidently precluded and not in a position to assist professional lawyers with whatever necessarily limited instructions it would have been possible to obtain from the appellant, who in my view, “could not”, “cannot” and “would not” be 73 capable of giving proper instructions to enable a fair hearing on fair trial principles.

172. Section 311(1) provides that a person is unfit to plead if “the person’s mental processes are disordered or impaired to the extent that the person cannot…”. It is well established that unfitness is not a mere impairment or difficulty in one or more of the criteria that are listed under s 311 or a mere impairment or difficulty specifically concerning s 311(1)(f).

173. I am positively satisfied on the balance of probabilities that the appellant’s intellectual disorder is such that the appellant “cannot” give instructions to the person’s lawyers. It is understood that the criteria, properly understood, may not be difficult to meet: see Hayne J in Eastman v The Queen [2000] HCA 29; 203 CLR 1 at [298]. Nevertheless, in my view this criterion is clearly not met in this case in respect of s 311(1)(f).

174. For the above stated reasons, I am satisfied on the balance of probabilities that the appellant has met the threshold to rebut the statutory presumption that he is fit to plead. In my view, on the evidence, on the balance of probabilities, the appellant “cannot” give instructions to a lawyer.

Orders

175. For those reasons the following orders are made: (1) The appeal is upheld.

73 Report of Ms Falkiner at pp 6-7; Magistrates Court transcript at p 18(1)-(20). (2) The finding of the Magistrate that the appellant is fit to plead is set aside. (3) I find that the appellant is unfit to plead. (4) The appellant is unlikely to become fit to plead within the next 12 months. (5) The appellant’s case is to return to the Magistrates Court for special hearing.

I certify that the preceding one hundred and seventy-five [175] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Chief Justice Loukas-Karlsson. Associate: Date: