DPP v Adams

Further evidence

16. Two categories of further evidence were brought forward on behalf the accused. First, there was a report dated 2 July 2025 from a psychologist, Dr Hatzipetrou. He was available by AVL for questioning at the hearing on 19 August 2025 but neither party sought to question him and nor did I. Secondly, there was an affidavit affirmed by Ms Eleanor Wallis of Legal Aid, who has been the solicitor with carriage of the accused’s matter since late 2023. In addition to affirming an affidavit, Ms Wallis gave oral evidence during which she was questioned by the accused’s counsel, the prosecutor and, to a limited extent, by me.

17. As already explained, I have not considered that further evidence in isolation from the evidence that was previously before me. I have considered the issue of fitness afresh, having regard to the whole of the evidence, including the further evidence.

Report from Dr Hatzipetrou

18. I turn first to deal with the report of Dr Hatzipetrou. Dr Hatzipetrou is a clinical and forensic psychologist. His report runs to some 36 pages. It is a difficult document. It is apparent that Dr Hatzipetrou had before him all of the material that was before me for the purpose of the first fitness investigation. In particular, he records that the material he reviewed included the reports of Dr Barker dated 14 June 2023 and Professor Greenberg dated 18 October 2023, their joint report dated 20 March 2024 and the transcript of their evidence given on 13 May 2024.

19. In addition to reviewing the material from the first investigation, Dr Hatzipetrou interviewed Ms Adams on (as he records at the outset of his report) three occasions, being 14 and 31 March 2025 in person and by videoconference on 26 June 2025, although I note that, in the body of the report, he refers to there having been four conferences.

20. Dr Hatzipetrou’s report sets out considerable detail drawn from that material under various headings (some of which are more familiar in the context of psychologists’ reports prepared for the purpose of proceedings on sentence) including “relevant social history”, “relationships”, “medical history”, “drug and alcohol history”, “forensic history” and “psychiatric history”. There is then a lengthy section setting out the results of his psychological assessment. There is also a section on “test behaviour” which describes behaviours of the accused that have previously been described in considerable detail in other material before me, such as her inattention and poor concentration and her expressions of frustration “as she struggled to complete test items”.

21. The report then turns separately to the topic of the accused’s fitness for trial, including addressing information concerning the offence. As I noted at the hearing last Tuesday, that part of the report records what appear to be frank admissions made by the accused, together with Dr Hatzipetrou’s own analysis of the strength of the case against her. Finally, Dr Hatzipetrou turns to express his opinion on the topic for which I assume he was retained.

22. The report is a combination of material that is helpful and material that is not. It contains much repetition (without helpful analysis) of the material that was before me on the first investigation. In many instances, the report fails to distinguish between information reported directly to Dr Hatzipetrou by the accused and information he has gleaned from the material with which he was briefed. He has addressed issues that are not in dispute in the present investigation, including a lengthy discussion of the accused’s capacity to exercise the right to challenge jurors.

23. Explaining his approach to his own conferences with the accused, Dr Hatzipetrou states at line 1085: Ms Adams was subject to a semi-structured interview that examined her understanding and/or knowledge of court processes, personnel and concepts.

24. That “semi-structured” approach, which (as is apparent from other parts of the report) involved his frequently testing Ms Adams as to her understanding of various matters, is in contrast with the approach commended in an earlier opinion before the Court of providing gentle repetition rather than confrontation with knowledge tests.

25. A further difficulty with the report is that Dr Hatzipetrou has not recorded his exchanges with Ms Adams verbatim. His own language, at least in his written report, is quite formal. There is no basis on which I can judge whether he simplified that formal style of language for Ms Adams during their conferences. As a result of that approach, it is impossible for me to judge what can be gleaned or inferred from his exchanges with her. For example, at line 1620, he states: While Ms Adams struggled with learning and retrieving information about court and related personnel, she confirmed that she was required to attend court.

26. Of course, retrieving information about “court and related personnel” will not form any part of the course of the trial for Ms Adams. To the extent that she needs to be reminded of such information, it can readily be provided to her on the spot. The quote continues: With regard to the latter, Ms Adams claimed that she was not expected to undertake any activities; rather, she was reliant on her lawyer to talk on her behalf.

27. I interpolate to note that that is an unexceptionable and accurate description of the role an accused may take during the course of a trial by jury. However, Dr Hatzipetrou continued: At this juncture, she was informed of her expected involvement in the proceedings, such as listening to her lawyer and the prosecutor, who would make opening statements. Likewise, Ms Adams was informed that the judge would make statements and at times would provide guidance to a jury or the lawyers about what information can be shared in the court. Similarly, Ms Adams was informed that her lawyer and the prosecutor would also have a closing statement. In response, Ms Adams claimed she would not be able to listen as she has a brain injury.

28. That recitation of the conversation makes it impossible to judge the significance of the response given by Ms Adams. I have no way of judging the way in which Dr Hatzipetrou presented that information. As it reads in the report, it sounds rather like a litany of requirements that would be imposed on Ms Adams during the course of the trial, given all at once, in a manner that may have been overwhelming to her. That is not the manner in which I would propose to conduct the trial.

29. Turning to the substantive opinion expressed by Dr Hatzipetrou, he gives great detail as to the results of psychological tests to which Ms Adams was subjected. In that context, I note that at line… [At this point in the giving of oral reasons, the accused requested a break. During the break, I was informed that the process of hearing the reasons in open court in the presence of the family of the deceased was causing her to become heightened and stressed. For that reason, when Court resumed, I pronounced my decision and reserved the balance of my reasons. The remainder of this judgment has been prepared in chambers by reference to the notes from which I was giving the oral decision].

30. In that context, I note that at line 1528, Dr Hatzipetrou takes it upon himself to reject an account the accused gave him of a memory she does have. He states: Whilst Ms Adams claimed she “had not slept for five days” prior to the accident and had ingested “crack”, the materials indicate she had met with Mr Martinho on the night of the offences and then consumed food before driving away in a stolen vehicle. To this point, Ms Adams’ account of the period preceding the alleged offending was likely to be unreliable. Individuals experiencing post-traumatic amnesia, particularly over 145 days, are likely to experience retrograde amnesia.

31. That opinion is then converted into a fact or finding (at line 1693: “As evident in the materials and findings, Ms Adams has no recollection of the offending or the events preceding the offending”) relied upon as a premise for the ultimate conclusion at line 1719 that Ms Adams is “permanently unfit for court proceedings”.

32. Turning to the three elements identified by the accused as being in issue that inform the question of fitness, the report includes mixed opinions. Concerning element (f), the person’s capacity to give instructions to their lawyer, Dr Hatzipetrou states at line 1677 that Ms Adams does have capacity to communicate with a legal representative, albeit a capacity hindered by “measured impairments in vocabulary knowledge and comprehension as well as verbal reasoning abilities and speed of information processing”.

33. His report is silent as to element (e), the capacity to understand the substantial effect of any evidence that may be given in support of the prosecution, unless he intended to address that issue in the observation at line 1675 that “prior to and during court proceedings, Ms Adams would require continual prompts and reminders about the various forms of evidence and the potential impacts on her case”.

34. As to element (d), Dr Hatzipetrou concludes that Ms Adams “does not appear to have the capacity to follow the course of proceedings”. His reasoning to that conclusion is as follows: Throughout the course of the interviews, Ms Adams’s responses were delayed to the point she had forgotten the initial question or prompt. There was evidence of tangential thought processes and marked distractibility. Coupled [with] marked impairments in information processing, Ms Adams is unlikely to recall information shared during the court proceedings as she would be unable to encode, store and retrieve this information in a reliable and effective manner. Moreover, she would experience difficulties discriminating between relevant and irrelevant evidence, which would assist in her instructions.

35. As submitted by the Director of Public Prosecutions, Dr Hatzipetrou’s reasoning on that issue does not engage with the principles discussed in my earlier judgment and in the judgment of the Court of Appeal. With respect, he has reached his conclusion on the basis that the accused lacks capacities that are not required at law. That was one of the reasons I did not act on the opinions of Dr Barker and Prof Greenberg in the first investigation: at [76]. It was also one of the reasons the Court of Appeal held that their final conclusions on the question of fitness should not be accepted. In the judgment at [201], the Court of Appeal gave, as an example of a capacity not required at law, the view of Dr Barker and Prof Greenberg that the accused was not fit to be tried because she was not able to “link, retain, process, comprehend and then retrieve” information. Notwithstanding the guidance provided by the Court of Appeal on that issue and the legal principle underpinning the Court’s reasoning, the accused’s representatives have brought forward a third expert opinion reasoned on almost exactly the same basis (“she would be unable to encode, store and retrieve this information in a reliable and effective manner”).

36. Returning to Dr Hatzipetrou’s report, the reasoning continues at line 1710 where he states: Ms Adams is likely to experience confusion and associated mood disturbances in the court proceedings. As a result, Ms Adams is likely to experience heightened anxiety and distress, which may manifest into paranoid ideation and agitated behaviour. Under these circumstances, Ms Adams’ ability to effectively communicate her thoughts in a timely manner would be significantly impaired.

37. To the extent that this opinion concerns the likelihood of confusion and mood disturbances which may manifest into agitated behaviour, it is important information for determining the additional measures that will need to be taken to ensure that Ms Adams has a fair trial. However, it falls short of establishing a basis for concluding that she does not have the capacity to follow the course of the proceedings. As noted by the Court of Appeal at [131](e), the High Court has endorsed the proposition that the fact that the disorder or impairment of an accused will disrupt the flow of the trial does not make them unfit to plead.

38. The asserted risk that confusion and mood disturbances may manifest into paranoid ideation is in a different category. However, the basis for that aspect of the opinion is not articulated and seems speculative. If, during the course of the trial, a basis emerges for apprehending that Ms Adams is experiencing paranoid or delusional ideation, the question of fitness plainly may have to be revisited at that time.

39. Dr Hatzipetrou’s report concludes: On the balance of the findings, Ms Adams’ capacities to follow the course of proceedings and provide instructions to her lawyer are significantly impaired and she would be markedly disadvantaged in court proceedings. The impacts of the severe cognitive and memory impairments are substantial, and [render] Ms Adams permanently unfit for court proceedings. To this end, Ms Adams appears to be unfit to plead given her mental processes are substantially impaired by virtue of a major neurocognitive disorder, and she is unlikely to be fit within the next 12 months.

40. The qualified language of that opinion (“appears to be unfit to plead”) implicitly acknowledges the difficulty for a psychologist of undertaking a predictive assessment of the capacity of an accused person with a traumatic brain injury to do the things specified in s 311 of the Crimes Act, which are necessarily informed by a good understanding of the criminal trial process and the requirements of a fair trial. Having regard to the difficulties with the report to which I have referred, Dr Hatzipetrou’s report has not persuaded me that the accused is unfit to plead to the charges on the indictment according to any of the elements of the statutory test.

41. Before leaving this topic, I note that one of the grounds of appeal from my decision following the first investigation was that I had erred in the conduct of the investigation pursuant to s 315A in four specified respects including that I should have given the parties notice that the expert evidence would be rejected on the basis that it “applied a standard of understanding and analysis that is higher than the standard accepted in the authorities” (a conclusion expressed in my previous judgment at [70]). The Court of Appeal rejected that ground for the reasons set out in that Court’s judgment at [168]- [170]. In particular, the Court found that the accused had been afforded ample opportunity to respond to the concern I expressed during the previous investigation that the experts’ opinions were predicated on an overly high threshold for fitness.

42. As the accused’s representatives have had the benefit of the Court of Appeal’s reasoning and conclusion on that issue, I did not consider it necessary to give the accused notice of my assessment Dr Hatzipetrou’s opinion. As already noted, neither party sought to question him. Furthermore, counsel for the accused on the present application, Mr Massey, did not address his report in his submissions.

43. For abundance of caution I did, at the conclusion of the hearing, invite Mr Massey to address me on an issue concerning the evidence of Ms Wallis. I will return to that exchange.

Evidence of Ms Wallis

44. Ms Wallis’s evidence was primarily directed to the accused’s capacity to give instructions, although her evidence on that issue also informs the other elements of the statutory test. Ms Wallis stated that, since taking carriage of the accused’s matter in late 2023, she has met the accused at court numerous times when her matter has been listed. Ms Ellis described her observations of the accused each time she has met her at court. She said that the accused’s mood is highly labile, changing quickly from happy to sad to angry. She said the accused’s main theme in conversation is sex. She said the accused is extremely difficult to keep on track in conversation and, once off track, extremely difficult to bring back. She said the accused diverts the conversation to irrelevant matters such as comments about men and sex and showing Ms Wallis her clothes, jewellery, food and drinks. Ms Wallis recorded that, when unable to answer a question, the accused often says she “isn’t retarded” or that she “has brains”. She tires easily. She often does not know who the people in court are, despite explanation ahead of time. She struggles to regulate her behaviour and emotions and it is difficult to calm her down when that occurs.

45. Ms Wallis described only two conferences with the accused at the Legal Aid office. That evidence confirmed my apprehension during the first investigation that, at that point in the proceedings, Legal Aid had not commenced the process of attempting to obtain instructions from the accused as to what defence if any she would make to the charges. Whilst I understand the difficulties the lawyers faced, in my respectful opinion that process should have been commenced long before it was. Plainly, there will be cases in which it will be possible to assess, without evidence from the lawyers, whether an accused person’s mental processes are disordered or impaired to the extent that they cannot give instructions to the lawyers. Mr Massey gave the example of a person who is in a coma. The presence of acute psychosis might also enable the court to conclude, without hearing evidence from the lawyers, that a person was incapable of giving instructions.

46. In the present case, however, that was always a question likely to be informed by the experience of the lawyers when they actually embarked upon the task of giving advice and taking instructions. Ms Wallis confirmed that she and Dr de Bruin had not gone through the case statement and asked the accused for her version of events before 24 July 2025.

47. As already noted, Ms Wallis and Dr de Bruin had two conferences with the accused at the offices of Legal Aid, the first on 24 July 2025 and the second 29 July 2025. Ms Wallis said her main goal in those conferences was to take Ms Adams through the case statement to see how she would respond and whether she could instruct Ms Wallis in relation to the contents.

48. In her affidavit, Ms Wallis stated that, at the first conference, they spoke to the accused for approximately half an hour at which point she became too tired and had to go home. In her oral evidence, Ms Wallis expanded upon that evidence, saying that the first conference had to be aborted because Ms Adams became “quite frustrated and quite upset” about an application by the DPP to add a condition to Ms Adams’ bail that she not consume controlled drugs, including cannabis. Ms Wallis said that, after that issue was raised, she could get nothing productive from the conference so she arranged to bring Ms Adams back for a second conference.

49. During the second conference, the accused told Ms Wallis that, on the night in question, people were shooting at her from the other car involved and that she had guns in her car. Ms Wallis formed the view that those instructions were unreliable, particularly the part about the accused having guns in her car as no guns were recovered by police at the scene of the accident. When confronted with that information, Ms Adams evidently stated to the lawyers that “undercover cops must have gotten the guns” or that “the other boys must have gotten the guns”. Ms Wallis said the accused appeared confused and visibly frustrated when confronted with the information that there were no guns. She said that, at multiple points during the conference, Ms Adams became angry or frustrated and made explicit comments about bashing people up and about other people wanting to kill her.

50. Ms Wallis explained why she envisages difficulties in running the trial. She said: Obviously instructing in a trial, you need to take instructions on the run. Often, you know, a witness says something that perhaps wasn't expected or didn't come out in the witness statement. You need to confirm that with the client, you need to take their views about, you need to know - obviously, we make forensic decisions as lawyers but the - we're creatures of instruction and that's a large part of - of what we do, we need instructions. You can't function without them. I don't foresee that we would be able to do that with Ms Adams, particularly when the additional layer of the guardian is involved as well and her capacity to take on that information. Firstly, I'm not confident at all that she would even be absorbing what was being said in the courtroom let alone be absorbing it, taking it on enough for me to be able to take meaningful instructions from her about those matters.

51. Ms Wallis also expressed concern as to whether Ms Adams will be able to follow the course of the proceeding. She said: I mean if I can express an opinion, I don't think that she can do it and that's based on my interaction with her from 2023. Obviously, the medical evidence has set out that the basis for her - her memory and the difficulties around that and her ability to - her attention span and stay with the course of the proceeding but on a more, I suppose, person to person level, she simply doesn't have that ability. So, for example, you know, it - I have taken Ms Adams - I'm often the one who's - who's essentially taking care of her during the proceedings and making sure or trying the best I can to make sure that she's involved and knows what's going on. But there's been not a single time during the entire course of this proceedings where I've taken her out of the courtroom and I - my usual practice is to - to check in with the client and say, 'Did you understand that? Do you need me to clarify anything?' She's not understood a single of the court proceedings at all. I've had to explain the whole thing from her and even then I - I have no confidence that she actually understands what's happened.

52. I have no difficulty accepting that Ms Wallis gave a careful and truthful account of the difficulties she has experienced in her dealings with Ms Adams. I have given careful consideration to her concerns. I have no doubt that the conduct of the trial will pose significant challenges and stresses for Ms Adams’ lawyers.

53. However, notwithstanding Ms Wallis’s concerns, I remain of the view that the presumption of fitness to plead has not been rebutted, for the following reasons.

54. First, at this point, Ms Adams’ lawyers have not fully explored the process of attempting to take instructions and indeed have spent little time on that undertaking. It is understandable that they felt unable to do so in the early stages of their retainer. Whether or not they should have commenced that task earlier than 24 July 2025 (as I believe that should), the simple fact is that they have spent less than two hours engaged in the process.

55. Secondly, it is apparent that part of the reason Ms Adams became heightened and frustrated during the conference on 24 July is that she was told the DPP had applied to have her bail varied so as to include a condition prohibiting her from consuming controlled drugs including cannabis. That indicates two things. First, she was able to understand the nature of an aspect of the proceeding and its impact on her. Secondly and more importantly, as ventilated at the hearing of the bail application, the reason for seeking that additional condition was that there is information indicating that she presently uses both cannabis and methylamphetamine. The extent to which Ms Adams’ behaviour during her dealings with her lawyers has been affected by her use of those drugs rather than by her brain injury is unknown but it is likely to have had some effect.

56. Thirdly, it is clear that Ms Adams has some understanding of some of the issues on which Legal Aid will need to take instructions. Those matters are listed in the judgment of the Court of Appeal at [210] and need not be repeated here.

57. Fourthly, Ms Adams has repeatedly said that she has no memory of the events of the night itself. It appears that, when pressed as to information she has provided about those events, she has indicated that she was relaying information told to her by other people. That is significant for two reasons. First, s 311(2) provides that a person is not unfit to plead only because the person is suffering from memory loss. Secondly, the provision of information that has been told to her by others indicates that, contrary to the opinion reached by some of the medical experts, Ms Adams is capable of retaining and retrieving information provided to her.

58. I acknowledge the suggestion in some of the evidence (including the opinion of Prof Greenberg and the evidence of Ms Wallis) that some of the information Ms Adams has provided to her lawyers may be the result of “confabulation”. This issue was considered by the Court of Appeal in its judgment at [220]-[225]. The Court noted at [221] that there are first instance decisions which have held that an accused’s reliability may be taken into account when determining whether an accused is fit to plead. In some cases, the unreliability would be obvious, for example where a person with a diagnosis of psychosis or schizophrenia gave a bizarre account that was clearly disconnected from reality. However, importantly for present purposes, the Court of Appeal at [222] cautioned against attempting to determine the reliability of an accused’s instructions in the forum of a fitness investigation. The Court noted that accused persons “may provide unreliable instructions to their legal representative for different reasons” and that “the determination of whether instructions are in fact ‘unreliable’ can be difficult”.

59. There can be no doubt that the task of legally representing Ms Adams in her trial will be difficult and stressful. Regrettably, that is the plight of criminal defence lawyers, probably especially those employed at Legal Aid. Their work in representing difficult clients in the glare of the public eye is often as unpopular as it is important. It is important because the right to a fair trial with legal representation is a fundamental aspect of the rule of law. But sympathy can play no part in the present determination.

60. Returning to the question of procedural fairness referred to earlier, I took the view during the hearing that I should give the accused an opportunity to respond to my assessment of Ms Wallis’s evidence and its limited assistance on the topic of whether Ms Adams is capable of giving instructions. At the conclusion of the hearing, I asked Mr Massey: But do you want to say anything in response to the [suggestion] that, accepting everything Ms Wallis says about the sincerity of her concerns and the care with which she has reached those opinions, we really can’t know what it will look like until the trial starts. The issue will remain alive, but at this point there isn’t perhaps enough more from what was before me on the last occasion – I accept that Ms Wallis’s evidence wasn’t before me but – and as I say, I accept the sincerity of her concerns. But to a large extent, that’s a sort of embryonic process that really there’s only been an hour and a half of seeking to obtain instructions on the nitty-gritty. And that’s sort of very much, I think, the beginning of the process rather than the end.

61. Mr Massey acknowledged that there was “a certain amount of predictiveness” in Ms Wallis’ evidence but submitted (with respect, correctly) “that’s what we do as lawyers… is infer from what’s happened in the past as to what will likely occur in the future”. Mr Massey submitted that the evidence established that Ms Wallis’s interactions with the accused are so difficult that “it becomes an unfair trial”.

62. While there is some force in that submission, I do not think it can be concluded on the material before me at this stage that the trial will be unfair. There are too many variables to make that assessment, including the manner in which the trial is conducted and the accommodations that can be given to the accused and her lawyers.

63. As already noted, following an investigation under Div 13.2 of the Crimes Act, I am required by s 315A(3) to reach a conclusion (“the court must decide whether the defendant is unfit to plead”). For the foregoing reasons, I have concluded the present investigation by deciding that the accused is not unfit to plead. However, it will plainly be necessary throughout the trial to monitor Ms Adams’ capacity to follow its course, understand the effect of the evidence and give instructions to her lawyers.

64. At this stage, I remain unpersuaded that the presumption of fitness is rebutted.

Orders

65. Accordingly, my decision is that the accused is not unfit to plead to the charges.

I certify that the preceding sixty-five [65] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: 25 August 2025