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1 As noted at [51(i)] below, s 311 of the Crimes Act is concerned with an accused’s fitness to stand trial, rather than simply the accused’s fitness to enter a plea. Nonetheless, as s 311 refers to an accused’s of “fitness to plead”, that terminology will also be adopted in this judgment.

6. For the reasons outlined below, I am satisfied that the accused is unfit to plead, and that it is unlikely that he will become fit to plead within the next 12 months. Accordingly, the proceedings will be listed for a special hearing. The Evidence

Overview

7. The evidence adduced on the fitness inquiry included: (a) A letter by Dr Susan Baglow, dated 8 February 2022; (b) A letter by Dr Eric Ho, dated 12 April 2022; (c) A letter by Dr Christine Phillips, dated 22 August 2022; (d) Two NDIS Plans (between 4 September 2024 and 4 September 2025 and between 27 February 2026 and 26 February 2027) for the accused; (e) A transcript of the accused’s bail proceedings, dated 11 December 2024; (f) A Behaviour Support Plan, dated 11 April 2025, and amended on 15 April 2025; (g) Email correspondence from the ACT Magistrates Court, dated 9 May 2025; (h) A statement by Ranjit Chahal, dated 4 September 2025; (i) A report of Dr Luke Hatzipetrou, dated 7 October 2025; (j) Dr Hatzipetrou’s curriculum vitae; (k) A guardianship order for the accused, dated 9 October 2025; and (l) An affidavit of Alyssa Zanardo, dated 26 June 2026.

8. The parts of the above evidence which are of relevance to the present fitness inquiry are summarised below.

9. Further to the above, at the request of the accused, a ground rules hearing was conducted at the outset of the fitness inquiry. In accordance with the recommendations of the witness intermediary, orders were made which will govern the way in which the accused is questioned during any trial or special hearing. Noting that the witness intermediary is not an expert witness, I did not permit the witness intermediary to be questioned about her recommendations by counsel for the accused. The accused’s background

10. The accused is a 35-year-old man who was born and raised in Kabul, Afghanistan. When the accused was a child, his family’s home was subjected to a bomb blast. Soon after, the accused’s father was killed in a motor vehicle accident.

11. Some years after this (the exact timing is unclear), the accused developed an abscess near his neck that required surgery. The accused travelled to India for the treatment of hydrocephalus. A ventriculoperitoneal stunt was surgically inserted into the accused’s brain. There were complications from this surgery, resulting in the accused suffering visual impairment and cerebral haemorrhaging (bleeding in the brain).

12. The accused was supposed to remain in India for six months following the surgery. However, the accused’s family did not have the financial resources to remain in India, and returned to Afghanistan after one and a half months. There was a marked decline in the accused’s abilities and behavioural control following the surgery, and the accused began requiring full-time care.

13. The accused immigrated to Australia with his family as a refugee when he was 28 years old. Following an incident of aggression in July 2022, the accused’s family found themselves unable to continue to meet his support needs. After further incidents of aggression, the accused was admitted to hospital. After his release from hospital, the accused lived in a group home.

14. The accused was moved to 24-hour supported independent living after he was aggressive to other residents and engaged in property damage at the group home. It was in this accommodation that the offences the subject of the present proceedings are alleged to have occurred.

15. Following his arrest for these charges, the accused was initially refused bail. On 11 December 2024, the accused was granted bail, on the condition that the accused not leave his home except when in the company of a support worker.

16. On 9 October 2025, the Australian Capital Territory Civil and Administrative Tribunal (ACAT) appointed the Public Trustee and Guardian as the accused’s guardian. Pursuant to that order, the Public Trustee and Guardian has power to decide where, and with whom, the accused is to live; to give consent for medical procedures and treatment, including mental health treatment; to give consent to receive NDIS services; and to make personal decisions needed to ensure the accused’s health and safety. Dr Baglow

17. On 8 February 2022, Dr Susan Baglow provided a supplementary report for the assistance of the ACAT in determining the application for a Guardianship Order concerning the accused. In that report, Dr Baglow noted that CT scans revealed that the accused has “prominent posterior fossa SCF” [sic] and volume loss of both cerebellar hemispheres.

18. Dr Baglow informed the ACAT that the accused’s speech has been affected since the insertion of the shunt. She stated that the accused’s speech is “minimal and usually does not correspond to the questions he is asked”. Dr Baglow noted that the accused’s family “communicate with him in very basic language”. In her view, the accused “does not appear to consistently understand basic instructions”. She considered that the accused “does not have any understanding beyond basic needs such as food”.

19. Dr Baglow indicated that, at that time, the accused was on a waitlist to see a neurosurgeon at Canberra Hospital regarding his ongoing neurological problems. There is no evidence of the accused having received any further treatment after this time.

Dr Ho

20. On 1 April 2022, Dr Ho, of Canberra Health Services Rehabilitation, Aged and Community Care, provided a report to Dr Baglow concerning the accused.

21. Dr Ho reported that the accused was able to feed himself, but that he required assistance for showering and dressing. Dr Ho stated that the accused was unable to comply with most instructions for physical examination, and that whilst the accused was oriented in space, he was not oriented in time.

Dr Phillips

22. On 22 August 2022, Dr Phillips provided a report to Centrelink. At the time of writing the report, Dr Phillips was the accused’s general practitioner, operating out of Companion House.

23. Dr Phillips reported that the accused has “an acquired brain injury which became apparent after a procedure for hydrocephalus with a VP stunt in situ”. Dr Phillips explained that: [the accused] is now very disabled with significant cognitive impairment and inability to undertake basic health and hygiene activities, including precipitant faecal incontinence. He is unable to communicate his needs. He is withdrawn and blind in one eye as a result of the surgery, or possibly the underlying condition. (Emphasis in original.)

24. Dr Phillips stated that the accused’s functional capability had declined, and that he required very close monitoring and support for all daily life activities. Dr Phillips also noted that the accused has periodic difficulties with mood regulation, resulting in “explosions of anger and occasional hitting of his younger sister”.

The NDIS plan dated 27 February 2026

25. An NDIS plan for the accused dated 27 February 2026 states that the accused was approved to receive $512,636.37 in NDIS support between 27 February 2026 and 26 February 2027. This funding was intended to assist the accused in receiving assistance with daily life activities and his social, economic and community participation, among related matters. The plan records that the accused “requires significant support with all his daily activities including self-care and domestic tasks/meal provision and when participating in social and community activities”.

Behaviour Support Plan

26. A Behaviour Support Plan dated 11 April 2025 and amended on 15 April 2025 notes that the accused: … experiences deficits in his adaptive and cognitive functioning related to problem-solving, abstract thinking, reasoning, planning, learning, judgement, and communication. [The accused] also displays a limited understanding of general safety behaviours.

27. The report states that it “is not yet clear whether [the accused] understands that some of his medications are considered chemical restraints (restrictive practice)”.

28. The report records that the accused can understand “simple, short sentences”. With respect to decision making, the report states that the accused: … is able to make simple decisions independently, such as choosing what to eat. He is able to express preferences about more complex decisions, however his preferences do not appear to align with the reality of his support needs.

29. Under the heading “risks of harm”, the report identifies the following: (i) Verbal aggression – escalating to physical aggression and property damage (listing some 15 incidents where the accused is said to have engaged in physical aggression, offences of a sexual nature and/or property damage towards his family, neighbours and support workers); (ii) Compulsive consumption of food (noting that the accused eats inappropriately large portions of ready-to-eat food, and that he has on multiple occasions climbed over his neighbour’s balcony, broke into their apartment, and ate all of the food in their fridge); (iii) Harmful sexual behaviour – socially inappropriate behaviours (listing four incidents, including the present charges); (iv) Harm to self – wandering (listing six occasions when the accused had absconded from his support worker).

30. The report identifies various strategies to be adopted by support workers for mitigating these behaviours of concern.

Transcript of the accused’s application for bail in the Magistrates Court

31. The accused was initially bail refused on 16 November 2024. As noted at [15] above, the accused subsequently made a second application for bail, which was heard on 11 December 2024 before Special Magistrate Christensen (as her Honour then was).

32. The transcript for that application records that the accused kept getting up, and attempting to leave. Special Magistrate Christensen cleared the courtroom to remove the distractions and sounds of other people. The accused’s then-support coordinator intervened to assist in calming the accused and getting him to sit in his seat. The transcript records the support worker (who was then giving evidence) as saying “Sit down Suliman. We will finish – wait. Won’t take much time. I’m here, Suliman. Can you see? Look up. Look up. I’m here… Suliman, I’m sitting in front of you. See?” The accused was subsequently removed from the courtroom while the application was heard.

33. Special Magistrate Christensen ultimately granted the accused bail, on the condition that the accused not leave his home without the company of a support worker.

The affidavit of Alyssa Zanardo, dated 26 June 2026

34. Alyssa Zanardo, one of the accused’s legal representatives, provided an affidavit, which she swore on 26 June 2026. The affidavit outlines the difficulties the accused’s legal representatives have had in communicating with the accused and taking instructions from him, including that the accused: (a) was unable to “sit still for more than 15 minutes at a time” or “maintain eye contact”; (b) left conferences with his solicitors abruptly several times, and would not return to the room despite requests to do so; (c) spoke softly and at a slow pace; (d) would not engage with evidence, such as photographs, provided to the accused; and (e) showed misunderstandings of or could not explain the purpose of Court, whether his matter had been resolved, or what charges he was facing.

35. In the affidavit, Ms Zanardo states that she does not have instructions to waive privilege held by the accused. For this reason, there are aspects of the conversation that the accused had with his counsel that are not contained in the affidavit.

The report of Dr Hatzipetrou

36. Dr Hatzipetrou is a forensic psychologist. He is currently working as both the director of and as a clinical and forensic psychologist for DGM Psychology Pty Ltd, which provides psychological services to individual clients, non-government and government community-based organisations. He has been in that position since 1995.

37. Dr Hatzipetrou reviewed a number of documents, including the police Statement of Facts; the accused’s criminal history; correspondence from the accused’s support coordinator; correspondence from other doctors involved in the accused’s treatment; a copy of the accused’s NDIS plan; and a copy of an audio recording of an interview between the accused and his legal representative.

38. Dr Hatzipetrou interviewed the accused on two occasions, first, at Legal Aid’s Canberra office, and second at the accused’s home. On the first occasion, the accused answered some of Dr Hatzipetrou’s questions about his general background and symptoms. However, the accused was ultimately largely uncooperative with the interview, leaving the room, becoming distracted by food and refusing to answer questions despite redirection from his support coordinator.

39. Dr Hatzipetrou also administered a series of tests to the accused. When presented with the Test of Nonverbal Intelligence, Fourth Edition (TONI-4), the accused gave incorrect answers to both sample test questions and subsequently left the room. In his report, Dr Hatzipetrou explained that the sample test items were only “basic and simple tasks”.

40. During the second assessment, Dr Hatzipetrou attempted to interview the accused about Court processes, personnel and concepts. The accused said that he did not know whether he had previously attended court. He also said that he “cannot talk” when he was asked about the current charge. The accused was unable to identify his lawyer, or the need for legal representation. Dr Hatzipetrou reported that the accused did not appear to understand the requirement to attend court or to participate in the interview.

41. As to the s 311 criteria, Dr Hatzipetrou expressed the following opinions: (a) It was difficult to ascertain the accused’s level of understanding regarding the nature of his charges, as his responses were “incongruent” with questions about the alleged offending; (b) The accused is likely to “experience difficulties” understanding the process of jury selection and his right to challenge jurors, and the accused “did not appear to understand” the concept of a plea; (c) It was difficult to establish the accused’s understanding of the role of the prosector, judge or jury, or the role of evidence or witness testimony. His comprehension could be aided through support, but there is “insufficient evidence” that the accused could retain this information; (d) The accused appears to “experience difficulties maintaining attention and concentration” for a period of even 10 minutes. He is “unlikely to engage in Court proceedings” and may attempt to leave the room despite warnings by legal representation. As a result of the accused’s cognitive impairments, the accused “would not be able to follow the course of proceedings”; (e) It is unclear whether the accused could understand the effect of evidence such as witness statements and DNA, or whether he could differentiate between relevant and irrelevant evidence; (f) The accused’s ability to instruct his lawyer “has been markedly impaired and reportedly lacking” due to his non-responsiveness. The accused does not appear to “appreciate the seriousness of his current circumstance or the need to speak with his lawyer”. The accused is likely to experience difficulties processing information in court and providing instructions to his lawyer contemporaneously; and (g) Dr Hatzipetrou concluded that the accused would be “markedly disadvantaged” in court proceedings owing to his cognitive and memory impairments.

42. Dr Hatzipetrou concluded that: [the accused] appears to be unfit to plead given his mental processes are substantially impaired by virtue of a major neurocognitive disorder, and he is unlikely to be fit within the next twelve months. Dr Hatzipetrou’s evidence

43. Dr Hatzipetrou gave evidence in chief and was cross examined in the fitness inquiry.

44. In evidence in chief, Dr Hatzipetrou confirmed the findings which he had set out in his report, including that the accused suffers from pervasive and severe “impairments around cognition, behaviour, self-regulation, communication”. Dr Hatzipetrou clarified that there was continued uncertainty around the impact of the accused’s cognitive and language impairments in court proceedings, as both Dr Hatzipetrou and the witness intermediary had struggled to adequately engage with the accused.

45. Dr Hatzipetrou informed the Court that he did not believe the accused was malingering. In his opinion, the accused’s lack of engagement stemmed from the accused’s failure to understand “the seriousness of the situation”. Dr Hatzipetrou informed the Court that it was “not evident” that further incarceration would help the accused understand the seriousness of the charges faced by him.

46. In cross examination, Dr Hatzipetrou clarified that it was likely that the accused’s behaviours, including absconding from interviews and becoming irritated when questioned, were related to the accused’s cognitive impairment as well as other factors such as communication and cultural factors, rather than being the product of a preference not to engage.

47. Dr Hatzipetrou was questioned about whether appropriate measures could be put in place by the Court to assist the accused in understanding and participating in court processes. Dr Hatzipetrou expressed the view that the accommodations suggested by the witness intermediary, namely, reducing the amount of court time per day, allowing the accused to have a support person present, having an in-person interpreter and taking breaks after 10 minutes or so of proceedings, would be beneficial to the accused. However, Dr Hatzipetrou remained of the view that it was likely that, even with these accommodations, the accused “does not have the requisite cognitive abilities” and “functioning” to retain required information, or to be an “active participant” in proceedings. Dr Hatzipetrou was of the opinion that it was unlikely that the accused could retain the information required to, for example, instruct his lawyer, follow a trial over multiple days, or recall testimony from multiple witnesses.

48. There was some discussion in cross and re-examination about whether it was feasible for the accused to receive further education and preparation about court proceedings, or for further cognitive testing to be administered to the accused. Dr Hatzipetrou agreed that it could be possible to allocate a series of five or six appointments, each with an in-person interpreter, to attempt to build sufficient rapport with the accused to enable the accused to complete further testing. Dr Hatzipetrou said that, if the accused was able to cooperate, such further testing would “be an opportunity to get some objective data about [the accused’s] abilities”. Dr Hatzipetrou agreed that such testing may give the Court a clearer idea of the accused’s exact cognitive functions and may improve the accused’s understanding of court personnel and processes. However, Dr Hatzipetrou noted that it is likely significant preparation would be required to get the accused to engage with further testing. Dr Hatzipetrou ultimately agreed that, even with further testing, it may be that the “pervasiveness of the [accused’s] brain injury” is such that his opinion of the accused’s fitness to plead would not change.

Principles to be applied

49. Section 311 of the Crimes Act provides as follows: 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.

50. “A person is presumed to be fit to plead”: s 312(1) of the Crimes Act. The presumption is rebutted only if it is established on the balance of probabilities that the person is unfit to plead: ss 312(2) and (3) of the Crimes Act. Neither party bears a burden of proof in this respect: s 312(4) of the Crimes Act.

51. The principles to be applied when considering an accused’s fitness to plead were set out by the Court of Appeal in Adams v DPP (No 2) [2025] ACTCA 3 at [130]-[137]. Importantly: (i) Although s 311 refers to an accused person’s fitness to “plead” to the charge, rather than the accused’s “fitness to be tried”, it is clear from the matters listed in s 311(1) that the provision is “concerned not only with the capacity of an accused to enter a plea, but also with the capacity of the accused to stand trial”: Adams at [130]; (ii) A person’s mental processes will be “disordered” within the meaning of s 311 if the person’s mental processes lack order or are confused. In contrast, a person’s mental process will be “impaired” within the meaning of s 311 if the person’s mental processes are damaged or lacking: Adams at [144]; (iii) The fitness test is ultimately directed to the “minimum requirements for a fair trial”: Adams at [133], citing Kesavarajah v The Queen [1994] HCA 41; 181 CLR 230 at 245; R v Rivkin [2004] NSWCCA 7; 59 NSWLR 284 at [298]; R v Hayles [2018] SASCFC 58; 131 SASR 186 at [31]; R v Presser [1958] VR 45 at 48. The question is one of incapacity rather than diminished capacity. A reduction in the capacity of an accused person to understand and follow proceedings does not equate to unfitness: Adams at [152]; (iv) The fact that an accused person is subject to a Guardianship Order is relevant but not determinative: Adams at [137], citing R v Fisher [2011] ACTSC 56; 210 A Crim R 199 at [29(19)]; (v) The application of the s 311 test needs to be applied in a “reasonable and commonsense fashion” and not in any “over-literal sense”: Adams at [132], citing Kesavarajah at 244; Ngatayi v The Queen [1980] HCA 18; 147 CLR 1 at 8; Presser at 48. It is a matter which “involves a judgment which will almost invariably involve issues of degree”: Adams at [131], citing Roberts v R [2023] NSWCCA 187 at [88]; (vi) Matters which may be relevant to the assessment include: the complexity of the charges; the length of the trial; whether the accused is represented by counsel; and whether other steps can reasonably be taken to accommodate the accused (such as adjourning the proceedings, or adjusting the way in which an accused gives evidence): Adams at [131]. The fact that the disorder or impairment will disrupt the flow of the trial does not render a person unfit to plead: Adams at [131(e)]; and (vii) In order to be found unfit to plead, the accused must be “entirely unable to follow the evidence or the course of the proceedings”: Adams at [134], citing Hayles at [31(v)]. In order to be fit to plead, it is not necessary that the accused have a “complete understanding” of the proceedings, that the accused be “capable of following the complexities of legal argument”, or that the accused be capable of following “difficult to understand aspect[s] of the evidence”: Adams at [135], citing Hayles at [31(iv)].

52. Where an accused is found unfit to plead, the accused will be subject to a “special hearing” pursuant to s 316 of the Crimes Act, under which a trial is conducted “as nearly as possible as if it were an ordinary criminal proceeding”: s 316(1) of the Crimes Act. The purposes of such a hearing are to give the accused “an opportunity of being acquitted”, and to afford victims “an opportunity to see that a form of justice, as necessarily imperfect as it may be in the circumstances, has been done”: Adams at [138], citing Subramaniam v The Queen [2004] HCA 51; 211 ALR 1 at [28].

Determination

53. The accused sustained a traumatic brain injury subsequent to surgery that was performed in India in 2016. As a result of that brain injury, the accused has severe and pervasive cognitive impairments. In these circumstances, it is clear that the accused suffers from a condition which has impaired his mental processes within the meaning of 2 s 311 of the Crimes Act. The question is whether the accused’s mental processes are impaired to the extent that the accused cannot do the things specified in that section.

54. There are aspects of the accused’s presentation that complicate the assessment of his fitness to plead. These include the accused’s need for an interpreter, cultural issues (particularly in respect of the accused’s understanding of Australian court processes), and, most importantly, the accused’s refusal, or inability, to engage in formal testing for a sufficient period to enable an objective assessment to be made of the accused’s capacity to retain and recall new information.

55. However, particularly because of the accused’s longstanding need for 24-hour disability support, the Court has the benefit of a documented history of the accused’s condition which predates the alleged offences by many years. As Dr Hatzipetrou explained: If we take a longitudinal view of this man’s life, he’s, you know, had hydrocephalus, he’s had associated complications, he’s – there’s adversity, and then the documented evidence, you know, shows us that he does not persist at any particular task for a long period of time. He engages in repetitive behaviours to meet his own needs or avoid task demand, and they’re evasive. So he continues to demonstrate the same pattern of challenging behaviours, which reflect, you know, limited learning ability, because, you know, people are, you know, trying to teach him new skills, they’re creating an environment that is safe and giving opportunities to, you know, build relationships, improve his, you know, living skills, his social skills, yet he continues to engage in a similar pattern. And if we look at the documentation, from the affidavit to the intermediary’s report, we can see that it’s consistent.

2 There is also some evidence of disordered thinking, in that the accused’s legal representatives and Dr Hatzipetrou have observed the accused to speak both to himself and to inanimate objects, and his interpreters have commented that his answers are sometimes nonsensical. In view of my conclusions below, it is unnecessary to consider whether the accused’s mental processes are also “disordered” within the meaning of s 311 of the Crimes Act.

56. Importantly, there was no challenge to Dr Hatzipetrou’s opinion that the accused is not malingering. Dr Hatzipetrou acknowledged that it was difficult to say whether the accused’s challenging behaviours stem from cognitive or behaviour issues. However, Dr Hatzipetrou emphasised that these two matters are interrelated, explaining that the accused’s “behavioural responses … are born from the [accused’s] cognitive impairments”.

57. Some of the opinions expressed by Dr Hatzipetrou in his report were framed in terms which suggested that it was not possible to positively conclude that the accused meets the s 311 criteria. However, as noted above, at law, there is a presumption that an accused is fit to plead. For this reason, in order to find that the accused is not fit to plead, it is necessary for the Court to make a positive factual finding, on the balance of probabilities, that the accused does not meet one or more of the s 311 criteria.

58. Ultimately, the opinion expressed by Dr Hatzipetrou in his report and in his oral evidence concerning the accused’s ability to follow the course of the proceedings was expressed in positive terms: he concluded that, taking into account all relevant information, including his own observations, the accused “would not be able to follow the course of the proceedings”.

59. As Dr Hatzipetrou also observed, it is apparent that the accused does not appreciate the seriousness of the charges which he faces. He left conferences with his counsel after only 10 to 15 minutes, despite requests for him to remain. The accused engaged in questioning or discussion with Dr Hatzipetrou for only “10 minutes over five hours”. Again, despite encouragement and explanations, the accused left the room.

60. I agree with the submission of the accused’s counsel that restricting the accused’s liberty will not address this issue. The accused was remanded in custody between 13 November 2024 and 11 December 2024. That period of custody did not result in the accused having any greater understanding of the seriousness or nature of the charges which he faces. Indeed, as the bail hearing before Special Magistrate Christensen demonstrated, restricting the accused’s liberty within the courtroom results in the accused becoming frustrated and aggressive. It is important to note that this conduct is not simply the accused choosing not to engage: as noted above, the accused’s behavioural responses stem from his cognitive impairments.

61. When considering the accused’s fitness under s 311 of the Crimes Act, it is necessary to take account of any accommodations that may be made to ensure the fairness of the trial: Victors (a pseudonym) v DPP (No 2) [2023] ACTCA 27 at [8]. Such accommodations may include the taking of frequent breaks, and ensuring that questions are asked (particularly of the accused) in simple and short sentences. Where, as here, an accused consents to having the assistance of a witness intermediary, the ability of the witness intermediary to assist the Court in meeting these communication needs must also be taken into account (cf Adams at [191], where the accused did not consent to the assistance of a witness intermediary).

62. The most significant of the potential accommodations explored in the present fitness inquiry is the taking of frequent breaks. The evidence indicates that the accused would require a break every 10 to 15 minutes for the duration of the trial. Unfortunately, frequent breaks are not a panacea for the difficulties faced by the accused. As Dr Hatzipetrou explained: Now, what we – his likely difficulty is, between the commencement of court and the lunch break, there could be in excess of 10 intervals, and my concern is that he does not have the requisite cognitive abilities to retain little bits of information. It doesn’t matter how it’s repeated or broken into small language, because it’s about memory. It’s not about language. It’s about memory, and then being able to use that to provide meaningful instructions to counsel and, more so, understand the nature of the proceedings.

63. In other words, whilst the taking of frequent breaks might assist the accused in absorbing the evidence adduced in the trial in the moment, such breaks will be of limited value in assisting him to retain what he has absorbed over the duration of the trial, which will necessarily be fragmented and lengthened by the course adopted. Indeed, the accused’s difficulty in retaining information is illustrated by his response when Dr Hatzipetrou attempted to explain to him the concepts of guilty and not guilty: the accused “looked at his mum” and asked “[w]hy is this man at my house?”

64. The affidavit of Ms Zanardo indicates that the accused has given his counsel some instructions. Ms Zanardo does not have the consent of the accused to waive privilege over those communications. No adverse inference can be drawn from an assertion of legal professional privilege: see Giannarelli v Wraith (No 2) [1991] HCA 2; 171 CLR 592 at 605 (McHugh J, citing Wentworth v Lloyd (1884) 19 HL Cas 589 at 590-591; 11 ER 1154 at 1155); Ashby v Slipper [2014] FCAFC 15; 219 FCR 322 at [144]. This is particularly so where the objective evidence indicates that there are questions as to whether the accused would have a sufficient understanding of abstract concepts so as to be able to waive such privilege.

65. Otherwise, Ms Zanardo’s affidavit provides further compelling evidence of the extent of the accused’s impairment. In particular, she states that, even with the assistance of an interpreter: (i) The accused could not state the purpose of the court proceedings, even after it had been explained to him by his counsel. The accused stated “[t]hey have all the information, they know better”; (ii) The accused gave an incoherent response through his interpreter when he was asked whether he understood that the evidence might include photographs of injuries; (iii) When the accused was asked about a bruise that he had sustained that was depicted in a photograph (apparently in the brief of evidence), he responded “I can’t speak a lot; I just want to leave”.

66. On the evidence presently before the Court, I am satisfied that the accused would not be able to follow the course of the proceedings. I am also satisfied that the accused would not be able to understand the effect of the evidence against him. As counsel for the accused submitted: [The accused] cannot mentally engage with the proceedings. He will not be able to remain in a courtroom, follow the proceedings or understand the basic concepts listed in s 311 of the Crimes Act. His inability to do so is not a matter of choice. It is a consequence of his profound mental impairment which strips him of his ability to engage in most activities of daily living independently. I agree.

67. As noted above, Dr Hatzipetrou accepted in cross-examination that, with further sessions aimed at developing rapport between himself and the accused, it is possible that additional tests could be administered which might provide further objective evidence about the accused’s capacity to retain information. Dr Hatzipetrou emphasised however, that there is no guarantee that such further testing would shed more light on the accused’s condition. Neither party sought an adjournment to permit any such further testing to occur.

68. In my view, the prospect that further testing would alter the above conclusions rises no higher than speculation. Of particular significance in this respect is the evidence in the Behaviour Support Plan and in the report of Dr Baglow, which demonstrates that, even with the assistance of trusted support workers, the accused “does not appear to consistently understand basic instructions”.

69. Taking into account all of the evidence, I am satisfied, on the balance of probabilities, that the accused would not be able to follow the course of the proceedings. In those circumstances, it is unnecessary to address the remainder of the s 311 criteria. I find that the accused is unfit to plead.

70. The underlying condition which renders the accused unfit to plead is permanent. There was no suggestion in any of the evidence before me that there is any further treatment available that would render the accused fit to plead within the next 12 months. Accordingly, I am satisfied that the accused is not likely to become fit to plead within the next 12 months: s 315A(4) of the Crimes Act. The matter will be listed for a special hearing pursuant to s 315C of the Crimes Act.

Orders

71. Accordingly, I make the following orders: (1) I find the accused is unfit to plead. (2) I find the accused is unlikely to become fit to plead in the next 12 months. (3) The matter is listed before the Registrar on 2 September 2026 at 9:00am for directions.

I certify that the preceding seventy-one [71] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker. Associate: Date: