R v Bailiff [2010] ACTSC 54

CRIMINAL LAW ─ fitness to plead ─ evidence ─ accused's behaviour during fitness to plead hearing may be taken into account.

CRIMINAL LAW ─ application to terminate fitness to plead investigation and dismiss the charge on grounds that punishing the accused would be inappropriate due to the trivial nature of the charge or the nature of the accused's mental impairment ─ charge of intentionally damaging property not trivial ─ application to terminate fitness to plead investigation refused.

Crimes Act 1900 (ACT), ss 311, 315, 312, 321

Mental Health (Treatment and Care) Act 1994 (ACT), ss 68, 28

Human Rights Act 2004 (ACT), ss 21, 31, 34

Guardianship and Management of Property Act 1991 (ACT), ss 4, 5, 7, 7B, 11

Explanatory Statement for the Mental Health (Treatment and Care) Bill 1994

Explanatory Statement for the Mental Health (Treatment and Care) (Amendment) Bill 1999

Explanatory Statement for the Crimes Amendment Bill 2004 (No. 4)

Clark v The Queen [2008] NSWCCA 122; (2008) 185 A Crim R 1

Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1

Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230

Ngatayi v The Queen [1980] HCA 18; (1980) 147 CLR 1

R v Dashwood [1943] KB 1

R v Presser [1958] VicRp 9; [1958] ALR 248

R v Pritchard [1836] EngR 540; (1836) 173 ER 135

R v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284

R v Swain (1991) 63 CCC (3d) 481

R v Taylor (1993) 77 CCC (3d) 551

ALEXANDER MARCEL ANDRÉ SEBASTIAN BARKER BAILIFF

1. Alexander Marcel André Sebastian Barker Bailiff is fit to plead to the charge that on 30 January 2009 he intentionally caused damage to property.

1. Alexander Marcel André Sebastian Barker Bailiff (who has sometimes gone by the surname Bayliff or Bayliss) has been charged with one count of intentionally damaging property on 30 January 2009. The allegation is that Mr Bailiff had an argument with Gerald Franks about a structure Mr Bailiff was building outside a property managed by Mr Franks on behalf of the Canberra Men's Centre. The argument became heated and Mr Bailiff dropped a large rock into the front and then the rear windscreen of the car that Mr Franks had arrived in, damaging both windscreens.

2. The charge arises under s 403(1) of the Criminal Code 2002 (ACT), and carries a maximum penalty of 1,000 penalty units and 10 years imprisonment.

Order for forensic mental health assessment

3. On 2 April 2009 Mr Bailiff was committed for trial in the Supreme Court. Refshauge J reserved for investigation the issue of his fitness to plead, and ordered that Mr Bailiff be examined by a psychiatrist to address his fitness to plead under s 311 of the Crimes Act 1900 (ACT) (set out in the Appendix to this judgment).

Application for determination of fitness to plead

4. An application for a determination of Mr Bailiff's fitness to plead under s 311 of the Crimes Act came before me on 14 September 2009. Counsel acting on Mr Bailiff's behalf, but instructed by the Public Advocate of the ACT who was at that time Mr Bailiff's legal guardian under an emergency Guardianship Order, sought an order under s 315(4) of the Crimes Act (also set out in the Appendix). That provision permits a court to terminate the fitness to plead investigation and dismiss the charge if it considers that punishing the accused for the offence would be inappropriate because of the trivial nature of the charge or the nature of the accused's mental impairment. Having regard to the nature of the particular charge, I declined to take such a step without having given proper consideration to the evidence about any mental impairment suffered by Mr Bailiff.

5. A number of documents relevant to Mr Bailiff's mental health were tendered to me, and counsel invited me to consider them in depth. In chronological order, those documents were as follows:

Judgment of Crispin J, R v Bailiff [2004] ACTSC 42 (9 June 2004)

Forensic Services Mental Health ACT report dated 11 November 2004.

Forensic Services Mental Health ACT report dated 17 June 2005.

Forensic Services Mental Health ACT report dated 29 May 2008.

Report of Dr Leonard Lambeth and Ms Natasha Shott dated 22 May 2009.

6. As well, Dr Lambeth gave evidence at the hearing on 14 September 2009.

7. Dr George, Dr Lambeth and Ms Shott are employed by Forensic Services, Mental Health ACT respectively as a Consultant Psychiatrist, a Forensic Psychiatrist, a Psychologist.

8. After the hearing, on 15 December 2009, counsel acting on behalf of Mr Bailiff, by consent, lodged a copy of a new Guardianship Order made on 27 October 2009, and written submissions made in anticipation of that order being admitted into evidence. Counsel for the Director of Public Prosecutions did not lodge any submissions in reply, and the Guardianship Order is admitted into evidence.

9. Section 311 of the Crimes Act sets out the criteria for determining whether a person is fit to plead, and s 312 of that Act sets out the nature of the inquiry and determination. Both these sections are set out in the Appendix. In summary:

(b) The presumption is rebutted if it is established that the person is unfit to plead.

(c) A person is unfit to plead if his or her mental processes are disordered or impaired such that the person cannot understand, or participate properly in, various specified elements of the normal criminal processes.

(d) The question of fitness to plead is a question of fact to be decided on the balance of probabilities, with no party bearing a burden of proof.

10. I note that the real question for decision under s 312 is whether a person is unfit to plead, because in the absence of such a finding the presumption of fitness would operate. The statement that fitness to plead is to be decided on the balance of probabilities is therefore unhelpful and may in some cases be difficult to apply.

11. Two of the documents admitted in evidence address the s 311(1) criteria specifically, while others have been prepared for purposes other than fitness to plead determinations. I summarise the written reports, and Dr Lambeth's oral evidence, below. There is no question of memory loss in this case, so s 311(2) is not relevant.

12. It is important in this investigation to keep in mind the distinction between Mr Bailiff's fitness to plead to the charge against him, and Mr Bailiff's criminal responsibility for the offence charged (determined under s 28 of the Criminal Code 2002 (ACT), set out in the Appendix). Those two issues seem to have been conflated on several occasions by participants in this investigation.

13. The current investigation relates only to Mr Bailiff's fitness to plead, and has no direct implications for the outcome of any subsequent trial or hearing. In particular, a finding that Mr Bailiff is fit to plead does not rule out a subsequent finding that he is not guilty of the offence charged by reason of mental impairment (see Crimes Act s 321).

Report of Dr Graham George (24 August 2003)

14. This report was prepared in the context of an assault charge arising out of an incident in a shopping centre in February 2003. Dr George described his interview with Mr Bailiff as follows:

His thought form was circumstantial and tangential. He exhibited pressure of speech and flight of ideas. At times, his associations were illogical. He appeared to express delusional ideas. He exhibited grandiosity with respect to the ideas that he was propagating. The course of the interview took two hours and during this time, he barely drew breath. I would have been able to pose questions to him over, perhaps, five minutes of the two hours. His affect was responsive. He smiled easily and was, generally, affable. He was controlling during the interview situation.

15. Dr George noted diagnoses of Organic Mental Disorder (incorporating changes in cognition, mood and personality), bipolar affective disorder, and possibly elements of factitious disorder. These disorders have been significantly contributed to by a brain injury sustained in a car accident in 1985.

16. As to Mr Bailiff's fitness to plead, Dr George found that Mr Bailiff did understand the nature of the charge against him (now referred to in s 311(1)(a) of the Crimes Act), but would have difficulties with the other aspects of criminal process now referred to in paragraphs 311(1)(b),(c),(d),(e) and (f). In relation to each of these elements, Dr George based his conclusions largely on Mr Bailiff's thought form, in particular his illogical associations and underlying delusional pattern of thinking; Mr Bailiff's tendency to dominate any conversation, and to interrupt, also seemed to influence Dr George's conclusions about Mr Bailiff's inability to comprehend the course of the proceedings, and to instruct any legal representatives he engaged.

R v Bailiff [2004] ACTSC 42 (9 June 2004), Crispin J

17. Following Dr George's assessment that Mr Bailiff was unfit to plead to the assault charge arising out of a shopping centre incident in February 2003 (see [14] above), the Mental Health Tribunal determined that Mr Bailiff was not fit to plead to the charge and was unlikely to become fit to plead within 12 months. In May 2004 Crispin J presided over a special hearing in relation to the charge. In June 2004 he found that Mr Bailiff had engaged in the conduct required to constitute the offence of assault, and ordered Mr Bailiff to submit himself to the Tribunal to enable it to make a treatment order. In the course of his judgment Crispin J reviewed several earlier assessments of Mr Bailiff's condition, and also made a number of more general comments about the processes then in place under ACT law for dealing with less serious offences alleged against people who were unfit to plead. However, Crispin J was not required to, and did not, address whether Mr Bailiff's mental condition rendered him unfit to plead by reference to the tests for unfitness to plead then set out at s 68(3)(a) to (f) of the Mental Health (Treatment and Care) Act 1994 (ACT) (see the Appendix). Those tests were to the same effect as the tests currently found in s 311 of the Crimes Act, but in 2004 they were applied by the Mental Health Tribunal rather than the court.

Report of Dr Graham George (23 July 2004)

18. This report was prepared by Dr George in relation to whether an order could be made under the Mental Health (Treatment and Care) Act 1994 (ACT), although it is not clear whether Dr George was considering a mental health order or a treatment order. Among other things, Dr George considered the nature and seriousness of Mr Bailiff's mental illness or mental dysfunction, the consequent need for treatment or care, the nature of any appropriate or necessary treatment, program, counselling or clinical support, and whether Mr Bailiff was able to consent to psychiatric treatment, care or support. As in 2003, Mr Bailiff seems to have monopolised the conversation. He had disputed Dr George's previous diagnosis of bipolar disorder, and the conclusion that he suffered any mental disorder or mental illness. Again, Dr George noted "flight of ideas", pressure of speech, grandiosity of ideas, elevated mood, a responsive affect, and possibly delusional thinking. Dr George reported his impression that Mr Bailiff did suffer a mental illness consisting of a mood disorder in association with prior brain damage. He noted Mr Bailiff's disinclination to accept medication but suggested that his co-operation might be gained with "adequate psycho-education and a good relationship with his treating doctor".

Report of Forensic Services Mental Health ACT (11 November 2004)

19. This report was prepared at the request of the ACT Mental Health Tribunal, and related to Mr Bailiff's meetings with the Forensic Community Mental Health Management Team to discuss the benefits of his voluntarily accepting mood-stabilising medication as recommended by Dr George in July 2004. Mr Bailiff told team members that despite his indication to Dr George in July, he had never intended to take any medication, and that he would not be trialling anything. Mr Bailiff could not see any particular benefit in avoiding his "continual altercations with the law", since his arrests and even his periods in custody do not bother him. He did not see his behaviour as problematic, and showed no willingness to change his offending behaviour.

Report of Forensic Services Mental Health ACT (17 June 2005)

20. This report relates to Mr Bailiff's dealings with the Forensic Community Outreach Service in the six months or so after he appeared before the Mental Health Tribunal in November 2004. Although the possibility of two-way conversations with Mr Bailiff had been established, Mr Bailiff continued to dominate the conversation. The team noted an exaggerated concept of self-importance, an inflated sense of entitlement, narcissistic traits, ideas of grandeur, a fixation on legal matters, little empathy and a failure to consider the consequences of his behaviour. Mr Bailiff asserts that his behaviour is a result of brain damage.

21. In the absence of any agreement by Mr Bailiff to take mood-stabilising medication, the team offered motivational interviewing and counselling techniques, but reported no significant gains over about eight months of providing such services. The team recommended consideration of a Treatment Order if Mr Bailiff did not agree to voluntary treatment with a mood stabiliser. The team noted that Mr Bailiff did not meet the criteria for the work of the team, which refer among other things to a risk of serious re-offending, and discharged him from the Service.

Report of Dr Graham George (29 May 2006)

22. This report was prepared following a request by Gray J that Mr Bailiff undergo a psychiatric assessment; the assessment was sought in the context of charges against Mr Bailiff arising out of an incident in another shopping centre.

23. Dr George reviewed a number of documents, including his two previous psychiatric reports and the June 2005 report by the Forensic Services Mental Health team. He referred to his original diagnoses of Organic Mental Disorder, Bipolar Affective Disorder and a probable Factitious Disorder, and noted the contribution made by Mr Bailiff's brain injury causing frontal brain damage. He quoted Dr Greg Hugh, a psychiatrist with Darwin Urban Mental Health Services, who saw Mr Bailiff in January 1999 and reported that Mr Bailiff would be prone to "further conflict with the law and may, possibly, place others at risk given his history of inappropriate disinhibition, grandiosity, persecutory ideation and an apparent delight at overstepping acceptable social boundaries".

24. Dr George held to his earlier diagnosis of Mr Bailiff's conditions, but did not address the question of his fitness to plead. However, he expressed some uncertainty about the impact of Organic Personality Disorder and frontal lobe syndrome respectively on Mr Bailiff's behaviour. As part of his diagnosis, Dr George provided a detailed description of Organic Personality Disorder and an assessment of Mr Bailiff by reference to that description. Much of that material is repeated in Dr Lambeth's 2009 report and is quoted at [27] below. The two descriptions of Organic Personality Disorder appear to have been extracted from the same source, with slightly different inclusions and omissions; Dr Lambeth's specific assessment of Mr Bailiff in this context is also very similar to that of Dr George.

Report of Dr Graham George (29 May 2008)

25. Dr George pointed out that this was his fourth assessment of Mr Bailiff. His description of Mr Bailiff's behaviour at interview indicated no change from previous presentations. Dr George's diagnoses were essentially the same.

Report and evidence of Dr Lambeth (22 May 2009)

26. Dr Lambeth reports that he and Ms Shott saw Mr Bailiff on 28 May 2009 (the dates of the report and of Mr Bailiff's meeting with Dr Lambeth and Ms Shott cannot both be correct, but it is not apparent which date is incorrect). Dr Lambeth described Mr Bailiff as follows:

There were no abnormal movements and his posture was normal and relaxed. He tended to treat the interview as if it were an opportunity to educate the interviewers (Dr. Lambeth and Natasha Shott) regarding the law, brain damage and many other subjects. He made fair eye contact and was generally co-operative. His affect was superficial, labile and at times, silly. His mood was quite expansive and euphoric with only slight irritability. Speech was best described as pressured, tangential, vague, circumstantial, self referential, over elaborative, metaphorical with loose associations and flight of ideas. Voice was normal. There was no evidence of perceptual disturbance. He displayed some paranoid and quite grandiose thinking. He was fully conscious and alert and was well orientated in time, place and person. Although he displayed insight into the fact of his brain damage, there was no evidence of insight into the effects of his behaviour on others. Judgement was severely impaired. He appeared to be a man of above average intelligence, but this would require confirmation by formal testing which would be difficult.

27. Dr Lambeth diagnosed Mr Bailiff as suffering from an Organic Mental Disorder with predominantly frontal lobe symptoms, which has resulted in "what could best be described as an Organic Personality Disorder". Dr Lambeth described the symptoms of that disorder, and Mr Bailiff's symptoms, as follows (this is the material that is very similar to Dr George's May 2006 report mentioned at [24] above):

A person who suffers from Organic Personality Disorder usually shows a reduced ability to persevere with goal directed activities; especially those involved with longer periods of time and postponed gratification. There is usually altered emotional behaviour characterised by emotional lability, shallow and unwanted cheerfulness (euphoria, inappropriate jocularity) or alternatively, irritability or short-lived outbursts of anger or aggression. There is also usually an expression of needs and impulses without consideration of consequences or social convention. Cognitive disturbance are common. There can be marked alteration of the rate and flow of language production. Altered sexual behaviour can also occur. The euphoria in Organic Personality Disorder may mimic hypomania, but it is said that true elation is absent and the patient may admit to not feeling happy as such. Frontal lobe syndrome is often associated with indifference and apathy and this can be characterised by lack of concern for events in the immediate environment. Conflicts with the law are quite common due to inappropriate behaviour in general. The ability to anticipate social or legal consequences of one's actions are typically diminished. Mr Bailiff presents on this occasion as having marked elements of a frontal lobe syndrome. There is a certainly an affective component associated with his general presentation over time and he has always exhibited pressured speech and flight of ideas, but once again disturbances in flow of speech can occur in Organic Personality Disorder. There is a family history of Bipolar Disorder. It is not impossible that Mr Bayliff may [have] a functional affective component to the expression of his symptoms, which have appeared over time to be significantly frontal lobe in origin.

28. Dr Lambeth's written report concluded that Mr Bailiff is unfit to plead by reference to the criteria set out in paragraphs 311(1)(b),(d),(e) and (f), but did not provide any explanation beyond the general statement that Mr Bailiff's mental processes are impaired due to chronic Organic Personality Disorder and Frontal Lobe Syndrome.

29. At the fitness to plead hearing, Dr Lambeth expanded on these views in examination in chief and cross-examination. His oral evidence is mentioned in the discussion of the various paragraphs of s 311(1).

Report of Dr Graham George (7 August 2009)

30. Dr George spoke to Mr Bailiff around August 2009 in connection with the current charges, but his conclusions seem to be directed to whether a Treatment Order should be made, or perhaps extended, in relation to Mr Bailiff. Dr George found Mr Bailiff to be co-operative and to understand the implications of the assessment being conducted by Dr George. His thoughts were disorganised to the extent of justifying a finding of formal thought disorder. He was at times fatuous but good-humoured, and did not seem to be depressed or to suffer any marked depressive mood disorder. While obviously of high intelligence, Mr Bailiff displayed poor judgment and insight. Dr George confirmed Mr Bailiff's previously diagnosed organic mental disorder, with a significant frontal lobe component. He said that Mr Bailiff "qualifies for a diagnosis of a mental illness" and presents as "chronically mentally disordered". Dr George strongly recommended that Mr Bailiff should be placed on an injectable medication, and expressed a belief that there were sufficient grounds for a Treatment Order. He did not consider Mr Bailiff's fitness to plead.

31. Only one of the tendered reports on Mr Bailiff specifically addressed the fitness to plead criteria. That was the assessment done by Dr George in August 2003, as a result of which Dr George concluded that Mr Bailiff was unfit to plead. Dr Lambeth's report made findings about the fitness to plead criteria but without any explanations.

32. Most of the reports were either prepared by, or rely on the views of, Dr George. Dr Lambeth's report contains a couple of paragraphs relevant to Mr Bailiff's attitude to the current offence, but his description of Mr Bailiff's behaviour, and his general diagnosis, draw heavily on Dr George's earlier reports, especially the report dated 29 May 2006.

33. The consistency among all the reports suggests either that Mr Bailiff's condition has not changed in any significant respect in the last seven years, or that subsequent assessors of Mr Bailiff have relied on the 2003 report rather than assessing him properly. The fact that Mr Bailiff's behaviour in court was entirely consistent with the descriptions provided by the various expert assessors since 2003 means that I have not concerned myself with the second possibility mentioned.

The criteria for fitness or unfitness to plead

34. In R v Presser [1958] VicRp 9; [1958] VR 45 (Presser) Smith J set out the requirements for an accused to be tried without unfairness. He said (at 48):

[An accused] needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. ... He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any.

35. In the ACT, s 68 of the Mental Health (Treatment and Care) Act 1994 set out a test for fitness to plead that was described (in the Explanatory Statement for the Mental Health (Treatment and Care) Bill 1994 at 16) as "incorporat[ing] the test from R v Presser". The original version of that test was to be applied by the Mental Health Tribunal, which was not to determine that a person was fit to plead unless it was satisfied that the person was capable of participating in the legal process in nine specified ways. Paragraphs 68(3)(a),(b),(c),(d),(e) and (h) corresponded to paragraphs 311(1)(a) to (f) of the Crimes Act, which set out the current test, while paragraphs (f),(g) and (j) referred respectively to making a defence to, or answering, the charge; deciding what defence he or she will rely on; and making his or her version of the facts known to the Court and to his or her legal representative. The effect of the requirement for the Tribunal to be satisfied as to the nine matters was that, once the Supreme Court had ordered a Tribunal determination of fitness to plead, the presumption was against a finding of fitness. That test for fitness to plead was the one applied in Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 (Eastman) and discussed at [41] to [43] below.

36. Section 68 was amended in 1999 to provide for the Tribunal to find unfitness to plead if it was satisfied that the person was unable to participate in legal processes in any one of six different ways (effectively reversing the presumption mentioned in [35] above); paragraphs 68(3)(f),(g) and (j) mentioned at [35] above were removed at the same time. The Explanatory Statement for the Mental Health (Treatment and Care) (Amendment) Bill 1999 said (at 17) that the new version of the test was "a codification of the common law criteria in R v Presser ... and the rule in R v Kesavarajah" and is "considered to be a clearer and more accurate articulation of the Presser test". The test as amended in 1999 was still, in relevant respects, in force in 2003 when Dr George made his first determination about Mr Bailiff's fitness to plead.

37. When the fitness to plead test was enacted in its current form as s 311 of the Crimes Act, it was described as "based on the existing definition in s 68 of the Mental Health (Treatment and Care) Act 1994" (Explanatory Statement for the Crimes Amendment Bill 2004 (No. 4) at 4). Minor drafting changes were made to some of the paragraphs in s 311(1), but the Crimes Act version was in substance the same as its immediate predecessor. The three versions of the test respectively relevant to this determination, to Dr George's assessment in 2003 and in Eastman are set out in the Appendix.

38. In Ngatayi v The Queen [1980] HCA 18; (1980) 147 CLR 1, Gibbs, Mason and Wilson JJ (at 7) referred to the statement of Alderson B in R v Pritchard [1836] EngR 540; (1836) 173 ER 135 that the question was "whether the prisoner has sufficient understanding to comprehend the nature of this trial, so as to make a proper defence to the charge". They approved Smith J's comment that the test needs to be applied "in a reasonable and commonsense fashion". Gibbs, Mason and Wilson JJ (at 8) also approved Smith J's statement that the accused "need not have the mental capacity to make an able defence".

39. In Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230 (Kesavarajah) the High Court (Mason CJ, Toohey and Gaudron JJ at 245, Deane and Dawson JJ agreeing) noted that the Presser test did not require the accused person "to have sufficient capacity to make an able defence".

40. Mr Kukulies-Smith in written submissions noted the distinction drawn by the High Court between a "proper defence" and an "able defence". The High Court saw a test of ability to make a "proper defence" as setting a lower threshold for fitness to plead than a test of ability to make an "able defence", but Mr Kukulies-Smith did not articulate how the setting of a lower threshold for fitness to plead supported his submission that, if Mr Bailiff's fitness to plead was to be determined at all, the determination should be that he was unfit to plead.

41. In Eastman, several members of the High Court considered the ACT test for fitness to plead, which at the relevant time was applied by the Mental Health Tribunal. As explained at [35] above, the test for fitness to plead considered in Eastman effectively applied a presumption against a finding of fitness to plead once the question of fitness had been raised. As well, the Tribunal was required to be satisfied of three more criteria than found in the current test before it could find a person fit to plead.

42. In Eastman, Gleeson CJ, in considering the content of the then ACT test for fitness to plead, adopted propositions set out by the Ontario Court of Appeal in a 1992 judgment; he said at [26] and [27]:

[26] The Ontario Court of Appeal, in R v Taylor [(1993) 77 CCC (3d) 551 at 564-565], recorded the following propositions, agreed by counsel, as representing the state of authority in that province: "(a) The fact that an accused person suffers from a delusion does not, of itself, render him or her unfit to stand trial, even if that delusion relates to the subject matter of the trial. (b) The fact that a person suffers from a mental disorder which may cause him or her to conduct a defence in a manner which the court considers to be contrary to his or her best interests does not, of itself, lead to the conclusion that the person is unfit to stand trial. (c) The fact that an accused person's mental disorder may produce behaviour which will disrupt the orderly flow of a trial does not render that person unfit to stand trial. (d) The fact that a person's mental disorder prevents him or her from having an amicable, trusting relationship with counsel does not mean that the person is unfit to stand trial." [27] In the present case, the ultimate test to be applied is the statutory test set out earlier. However, each of the above propositions is sound, and they are consistent with the statutory test.

43. Several of the other members of the High Court mentioned the fitness to plead test without expanding on its operation, but also without disagreeing with Gleeson CJ's comments. As explained in [41] above, the version of the fitness to plead test addressed by Gleeson CJ set a higher threshold for an accused to be found fit to plead than does the current test. There is no reason to assume that the Taylor propositions, all of which narrowed the circumstances in which a person could be found unfit to plead, are any less relevant to the current test which also indicates an intention to narrow those circumstances from the position that applied in Eastman.

44. Many courts have, however, made it clear that fitness to plead or be tried does not require the accused person to have any particular level of intelligence, skill, legal knowledge or experience, or common sense. For instance, in R v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284 (Rivkin) a conviction was challenged on the ground that after his trial the prisoner was found to have a brain tumour which would have caused frontal lobe dysfunction at the time of the trial. The case was noted by the NSW Court of Criminal Appeal as raising an unusual question, in that the relevant mental condition was temporary and treatable, but it does not seem to me that this affects the relevance of the Court's comments about the significance of the reduction in mental capacity suffered by the accused at the time of his trial. The Court (Mason P, Wood CJ at CL and Sully J) said (at [297] to [298]):

The central question which arises, in this respect, is whether a reduction in the capacity of an accused to meet the requirements in R v Presser, but which falls short of denying to that accused the capacity to understand and to follow the proceedings in each of the necessary aspects, is sufficient to constitute unfitness, and to justify appellate intervention, in accordance with the test previously mentioned. ... The test in R v Presser is directed to the minimum requirements for a fair trial. So long as the accused can understand and follow the proceedings in each of its facets, can give appropriate instructions, and can present a proper defence to the charge, he or she is to be regarded as fit to be tried. The fact that the accused may have done so in a better way, had suitable medical treatment or medication been provided, or had that accused possessed greater intelligence or acuity of mind, does not seem to us to be relevant to the question of fitness.

45. In Clark v The Queen [2008] NSWCCA 122; (2008) 185 A Crim R 1 (Clark), an accused insisted on conducting his own defence. In doing so, he made a number of decisions against the advice of the trial judge, which led the prosecutor to raise questions of the relevance of the Presser test. The trial judge rejected the suggestion that the trial fell into the Presser category. On appeal, the Court of Criminal Appeal (Barr J, with whom Bell JA and Buddin J agreed), said at [129]:

In my opinion his Honour was correct in forming the belief that the events at the trial did not demonstrate that the appellant failed to come up to the minimum standards in R v Presser. Relevantly, the appellant had to understand the nature of the proceedings, something he clearly did, to follow the course of the proceedings, something he clearly did, to understand the substantial effect of any evidence given in support of the prosecution, something he clearly did, and to make a defence or answer to the charge, something he was intent on doing, though in a way that was not calculated to succeed and even likely to damage his own case.

46. Finally in examining the test I should apply in Mr Bailiff's case, a further passage from Taylor is worth quoting. In addressing a particular modification to the test suggested by the respondent, the Court said (at 566 to 567):

... one must remain cognizant of the rationale for the fitness rules in the first place. In order to ensure that the process of determining guilt is as accurate as possible, that the accused can participate in the proceedings or assist counsel in his/her defence, that the dignity of the trial process is maintained, and that, if necessary, the determination of a fit sentence is made possible, the accused must have sufficient mental fitness to participate in the proceedings in a meaningful way. At the same time, one must consider that principles of fundamental justice require that a trial come to a final determination without undue delay. The adoption of too high a threshold for fitness will result in an increased number of cases in which the accused will be found unfit to stand trial even though the accused is capable of understanding the process and anxious for it to come to completion. In addition, adopting a high threshold of fitness, including a "best interests" component, derogates from the fundamental principle that an accused is entitled to choose his own defence and to present it as he chooses. In R v Swain, [(1991) 63 CCC (3d) 481] at p 504, Lamer C.J.C., for the majority, stressed the importance of the accused's s. 7 right to liberty which allows him to control his own defence. An accused who has not been found unfit to stand trial must be permitted to conduct his own defence, even if this means that the accused may act to his own detriment in doing so. The autonomy of the accused in the adversarial system requires that the accused should be able to make such fundamental decisions and assume the risks involved.

47. As well as the written reports from Dr George and Dr Lambeth, and Dr Lambeth's oral evidence, I shall take account of Mr Bailiff's behaviour in court during the hearing. Mr Bailiff played a central role in the hearing (although perhaps not quite as central as he would have liked). The content of some of his many applications and interjections is relevant to the issues I need to resolve, as is his conduct more generally.

48. In taking account of Mr Bailiff's behaviour in court, I rely on R v Dashwood [1943] KB 1 at 4, in which the Court of Criminal Appeal said that information raising a question about an accused's fitness to plead may be accepted from any source:

It does not matter whether the information comes to the court from the defendant himself or his advisers or the prosecution or an independent person, such as, for instance, the medical officer of the prison where the defendant has been confined.

49. In R v Steurer (2009) 3 ACTLR 272 (Steurer) (at [21]) I took the view that this approach applied equally to information tending to confirm fitness to plead as to information raising the question of fitness to plead.

50. I turn now to assessing Mr Bailiff against each of the statutory criteria by reference to the opinions expressed by Dr George and Dr Lambeth as already described, the interpretation of the statutory criteria as already set out, and Mr Bailiff's behaviour in court.

Ability to understand the nature of the charge (****Crimes Act s 311(1)(a))

51. In 2003 Dr George found that Mr Bailiff did understand the nature of the charge then outstanding against him. Dr Lambeth's written report did not identify Mr Bailiff's understanding of the current charge as problematic. In oral evidence Dr Lambeth agreed that Mr Bailiff had a superficial understanding of the nature of the charge against him. Dr Lambeth expanded on this answer but in relation to Mr Bailiff's ability to understand the nature of his actions and whether they were wrong rather than his ability to understand the nature of the charge as such (see transcript extract quoted at [52] below). I suspect that Dr Lambeth was at that point losing sight of the distinction mentioned in [12] and [13] above between Mr Bailiff's current fitness to plead to the charge and his criminal responsibility for the actions that gave rise to the charge. The tests for criminal responsibility include whether the person knew "the nature and quality" of his conduct and knew that it was wrong (Criminal Code ss 28(1)(a) and (b), see Appendix).

52. During the hearing Mr Bailiff tried several times to raise factual matters related to the charge (specifically matters about the circumstances in which he damaged the car) which would have provided an explanation and possibly even a defence to the charge, as the following exchange during Dr Lambeth's evidence in chief demonstrates:

MR LAWTON: So I suppose I - could you elaborate on that? --- Well, nature, nature, does he know what the act means? Yes, I think he knows that if you break something, then you have broken something. Does he know that it's wrong? There may be understanding that it is wrong to others, but because of the brain damage, he sees it only in terms of himself so that knowing that he committed a wrong act is difficult in this case because, "Well, no, I had a perfect right to do it," becomes the dominant thought rather than, "Well, I must refer to what the law and what society says I can and cannot do." MR BAILIFF: Your Honour, the burglary of a tonne of bricks from my front residence and a tonne of soil is far more wrong than me defending myself, your Honour, which is my lawful right, your Honour.

53. I am satisfied that Mr Bailiff has an entirely adequate understanding of the nature of the charge against him.

Ability to enter a plea to the charge and exercise the right to challenge jurors or the jury (****Crimes Act s 311(1)(b))

54. In relation to his ability to enter a plea, Dr Lambeth first referred to Mr Bailiff's explanation for his actions that gave rise to the charge, which were described in his written report as follows:

He explained in circumstantial and tangential terms the nature of events of that particular day. He indicated that his behaviour was designed "to get the matter before a Supreme Court Judge". He stated that he was not going to enter a plea to the charge and that he would rely on a precedent of R v Bayliff that he had previously been found to be unfit to plead.

55. As a result of Mr Bailiff's explanation, Dr Lambeth said that he felt Mr Bailiff "was therefore not mentally well enough to form an opinion with a normal degree of sense and composure ... about entering a plea in that case". The test applied by Dr Lambeth is not to my knowledge relevant to the question whether a person has an ability to enter a plea. Rather, it seems to relate to the question whether by reason of mental impairment a person should be found not guilty of a charge; one of the tests for criminal responsibility is whether the person can reason with a moderate degree of sense and composure about whether the conduct charged, as seen by a reasonable person, is wrong (Criminal Code, ss 28(1)(a) and 28(2)).

56. In response to a question from me, Dr Lambeth conceded that Mr Bailiff's explanations for refusing to enter a plea and his reliance on earlier findings about his fitness to plead could suggest that Mr Bailiff had a very clear idea of how the system worked and how to work around it.

57. As to exercising his right to challenge jurors or the jury, in 2003 Dr George found that Mr Bailiff "would have difficulty applying himself" because "at times, his associations were quite illogical and his underlying delusional pattern of thinking was predominant [which] would complicate his ability to challenge a juror". Dr Lambeth gave evidence that:

[Mr Bailiff's] ability ... to consider whether or not he should challenge will be completely overtaken by whatever feelings he has that are not being completely dealt with in the brain in the normal fashion. Our frontal lobes normally help us to deal with those things and to think clearly about subjects. In this case I don't believe that he does, emotion takes over.

58. Later on, Dr Lambeth conceded that Mr Bailiff would have a "basic understanding" that he could challenge a juror but said he didn't believe that Mr Bailiff would "be able to develop a context that was appropriate" and that any challenge would be based "on his own mental processes". He agreed that his view was based on an inference that "the thought processes [Mr Bailiff] used to challenge that jury would be different from someone without the impairment". While Mr Bailiff could indicate that he didn't want a particular juror, such a challenge "wouldn't be based upon a rational thought process".

59. I have previously commented on whether jury challenges have any particular rationality to them; see Steurer at [41], where I said:

the process of challenging jurors without cause is not necessarily a rational process for any accused person, and will often be influenced by beliefs that, while not delusional, are not particularly well-founded.

60. In general terms it may be rational for an accused person to try to assess whether a potential juror is likely to be more or less sympathetic to him or her, but a rational basis for assessing this, especially given the very limited information that an accused person in the ACT has about potential jurors at the time the jury is empanelled, is in most cases almost impossible to identify. Nothing in the opinions of the two doctors suggests that Mr Bailiff would not be conscious that he can challenge potential jurors with a view to getting a more sympathetic hearing, and his behaviour in court suggests he is well aware of the desirability, in his dealings with the justice system, of seeking to maintain the goodwill of its participants, albeit that his attempts may be at times misguided or even ironic, as the following exchange at the hearing indicates:

MR BAILIFF: I'm very grateful for your time and mercy and might I seek leave to sit down, your Honour, and allow the case to go on? HER HONOUR: You can sit down, Mr Bailiff, and I would appreciate it if you seek leave to stand up from here on, all right? MR BAILIFF: Yes, well, your Honour, I'm sorry that I was so concerned about the psychiatric order, I just - - - HER HONOUR: That's all right, I don't need any further apologies, I just want you to sit down. MR BAILIFF: Okay. HER HONOUR: We're going to get on with the fitness to plead hearing. MR BAILIFF: Your Honour - - - HER HONOUR: After that is dealt with, then I will - - - MR BAILIFF: Okay, I'm not going to distract you anymore, your Honour, at all because it's my lawyer's turn and Mr Lawton's turn.

61. Mr Bailiff's challenges to jurors may well reflect his particular, possibly delusional, view of the world, but there is no basis in the material before me to suggest that he is incapable of exercising the right to challenge a jury as effectively as any other accused person relying on his or her own instincts, assumptions and possibly stereotypical views of the world.

Ability to understand that the proceeding is an inquiry about whether the person committed the offence (****Crimes Act s 311(1)(c))

62. In his 2003 report Dr George said that Mr Bailiff might have difficulty comprehending that the proceedings were an inquiry into whether he committed the offence concerned.

63. Dr Lambeth did not identify this test as a matter of concern in his written report, and in oral evidence conceded that Mr Bailiff would have some understanding that the proceedings were an inquiry into whether he committed the offence.

64. I note also that some of Mr Bailiff's interjections during the hearing were directly relevant to his liability for the behaviour out of which the current charge arose, and I have no doubt that he would have a proper understanding of the nature of the proceedings (see for instance his comments quoted at [52] above).

Ability to follow the course of the proceeding (****Crimes Act s 311(1)(d))

65. Dr George said in his 2003 report that Mr Bailiff "may well have difficulty following the course of the proceedings, i.e. not interrupting or expressing [his] ideas at inappropriate times".

66. Dr Lambeth's written report said that Mr Bailiff could not follow the course of proceedings. In oral evidence he said that following the course of proceedings would be difficult for Mr Bailiff because his cognitive faculties are impaired by his brain damage, "which then allows his emotion at the time to completely take over any thinking that may be there". Dr Lambeth conceded that Mr Bailiff was not completely unable to follow the course of proceedings, only that his ability to do so is "impaired markedly". In cross-examination, Dr Lambeth said that his concerns about this criterion arose "because of [Mr Bailiff's] inability to stay his feelings, his need to immediately interrupt in most proceedings".

67. I do not consider that either Dr George or Dr Lambeth has applied the correct test in this case; s 311(1)(d) seems to me to refer to the accused's ability to understand in general terms the sequence of events in the trial, and the purpose of the procedures being followed or the material being dealt with at each stage in the trial. This was described by Smith J in Presser (at 48) in this way:

He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities.

68. Mr Bailiff's tendency to interrupt the proceedings, and to do so quite deliberately, is a different question altogether, as noted specifically in paragraph (c) of the Taylor propositions adopted in Eastman (see [42] above):

(c) The fact that an accused person's mental disorder may produce behaviour which will disrupt the orderly flow of a trial does not render that person unfit to stand trial.

69. In any case, I note that Mr Bailiff's interruptions of the hearing before me may have been inappropriate in terms of the normal routines of a court hearing in which both parties are represented, but they repeatedly demonstrated that Mr Bailiff was paying close attention to the proceedings and identifying in a deliberate, even calculating, way the point at which to interrupt for maximum effect, as indicated by the following exchange during Dr Lambeth's evidence in chief:

MR LAWTON: If we then move on, "Speech was best described as" - well, that first descriptor, pressured? --- Yes, pressured speech is where the patient seems to not be able to take time to speak but wants to get it all out at once. And an example of that would be interrupting. I suppose?--- Yes, it would be. Tangential?---Tangential, doesn't--- MR BAILIFF: Objection, your Honour, I never interrupt. THE WITNESS: ---doesn't stick to the point, tends to go off at tangents and bring up other topics.

70. I see no reason to find that Mr Bailiff would not be able to follow the course of any proceedings relating to the charge he is facing.

Ability to understand the substantial effect of any evidence that may be given in support of the prosecution (****Crimes Act s 311(1)(e))

71. Dr George said in 2003 that he believed Mr Bailiff would have difficulty understanding the substantial effect of any evidence that may be given in support of the prosecution, but without giving any explanation for his view.

... to my way of thinking, when I'm understanding evidence given against me, if my cognitive faculties are impaired so that I only interpret what is said in terms of my own needs, then I don't believe I'm giving a full understanding.

73. In response to a question from me, Dr Lambeth conceded that most accused persons would interpret and assess evidence in terms of what it means for them, but pointed out that in Mr Bailiff's case "the ability to interpret anything like the normal way is so substantially impaired".

74. Two of Mr Bailiff's interjections are relevant in applying this test. The first one was made during Dr Lambeth's evidence, and is quoted at [52] above.

75. The import of Mr Bailiff's interjection (that the theft of his property is far more wrong than him defending himself by damaging another person's property) may be an arguable proposition, but it is a proposition that directly responds to Dr Lambeth's articulation of what a person who is fit to plead would think. Relevantly to the test currently being considered, it demonstrates a capacity to consider the sort of evidence that might be useful in any trial of this offence and the significance of evidence to the legal arguments to be made in the trial.

76. The second interjection related more specifically to the details of the alleged offence, and took place during Mr Kukulies-Smith's submissions about s 315(4) of the Crimes Act:

MR KUKULIES-SMITH: As to the trivial nature of the charge, the charge is, and if your Honour looks at the statement of facts that my friend tendered in relation to the charge, the charge amounts to the dropping of two large rocks, firstly through a windscreen of a motor vehicle then proceeding to the rear of the motor vehicle and dropping a separate rock through the rear - - - MR BAILIFF: It was actually one rock through the front and then I picked it up and then I put it through the back your Honour and then back in my driveway. It was after the man threatened to take my bricks and soil from my front garden. HER HONOUR: I don't think it really matters whether it was one rock or two but thank you for that clarification. MR BAILIFF: But that's the evidence your Honour. I can't misrepresent the truth by saying there's two, there's only one I was using.

77. Mr Bailiff's wish to clarify whether there was one rock or two showed a focus on a detail that was irrelevant in the fitness to plead hearing, but it was not an irrational approach to the evidence; whether he used the same rock or deliberately obtained a second rock might turn out to be relevant in a trial (for instance as to the credibility of witnesses to the incident) or in a sentencing hearing (in terms of matters such as premeditation).

78. Mr Bailiff's ability to respond (albeit in a procedurally inappropriate way) to references to the details of his offence offers no support for a finding that Mr Bailiff could not understand the substantial effect of prosecution evidence. Having regard to contributions from Mr Bailiff of the kind quoted above, I would not be willing to find him unfit to plead by reference to this criterion without far more specific evidence of his inability to understand the substantial effect of prosecution evidence.

Ability to give instructions to the person's lawyer (****Crimes Act s 311(1)(f))

79. Dr George commented in 2003 that Mr Bailiff would probably tend to represent himself when he would be well advised to have legal counsel, and that he would not be able to adequately instruct counsel. Dr Lambeth's report also identified an inability to give instructions to his lawyer as an element of Mr Bailiff being unfit to plead. In evidence Dr Lambeth said that Mr Bailiff could not rationally give instructions. He referred to Mr Bailiff's views about the many other legal actions in which he has been involved, the difficulty that Dr George had mentioned in controlling his interviews with Mr Bailiff, and his own experience of Mr Bailiff's "pressured, over elaborative speech ... where we really couldn't get any sense of what was really happening".

80. The prosecutor sought to ask Dr Lambeth about the instructions Mr Bailiff had been giving Mr Kukulies-Smith during the hearing; Mr Kukulies-Smith objected to the question on the basis that he was not strictly speaking instructed by Mr Bailiff but by the Public Advocate. The question was disallowed on that ground, and might not in any case have been an appropriate one for Dr Lambeth, who probably had less expertise than the lawyers in the court in assessing whether Mr Bailiff's remarks and requests to Mr Kukulies-Smith would have been helpful or rational instructions.

81. My own assessment from observing Mr Bailiff's interactions with Mr Kukulies-Smith in court was that Mr Bailiff's dealings with a lawyer acting on his behalf would be idiosyncratic and potentially frustrating for his lawyer, but that his instructions would in fact be more sophisticated than simply "letting his counsel know what his version of the facts is and, if necessary, telling the court what it is" and being "able to decide what defence he will rely upon" (Presser, quoted at [34] above). Indeed, as indicated in the exchange quoted at [52] above, Mr Bailiff was able, apparently without legal assistance, to identify details of his intended defence during the fitness to plead hearing.

82. Paragraph (d) of the Taylor propositions is indirectly relevant here.

(d) The fact that a person's mental disorder prevents him or her from having an amicable, trusting relationship with counsel does not mean that the person is unfit to stand trial.

83. There is no suggestion in this case that Mr Bailiff's approach to instructing his lawyers has rendered him incapable of having an amicable, trusting relationship with his lawyers - he appeared to be on adequate terms with Mr Kukulies-Smith and spoke warmly of another lawyer who was representing him in another matter. Since the nature of his relationship with his lawyers is not in question, the significance of this Taylor proposition is only its impact in narrowing the scope of the reference to an ability to instruct the person's lawyer.

84. Subject to the issue canvassed at [102] to [110] below, I can see no reason for finding that Mr Bailiff would be unable to give instructions to his lawyer to the standard required for s 311(1)(f).

85. Mr Kukulies-Smith drew out some of the details of Mr Bailiff's delusions about his previous legal proceedings and his dealings with various prominent legal identities, and submitted that those delusions are so pervasive that they prevent Mr Bailiff "rationally engaging with the proceedings in a variety of ways" and therefore render Mr Bailiff unfit to plead. I have already concluded at [61] above that Mr Bailiff's delusions do not render him unfit to plead by reference to the criterion specified in s 311(1)(b). I also note paragraph (a) of the Taylor propositions:

(a) The fact that an accused person suffers from a delusion does not, of itself, render him or her unfit to stand trial, even if that delusion relates to the subject-matter of the trial.

86. Neither Dr George nor Dr Lambeth identified Mr Bailiff's delusions as a matter rendering him generally unfit to plead. During the fitness to plead hearing, Mr Bailiff referred to some of his beliefs which I assume to be delusional, but these delusional beliefs, if that is what they were, did not appear to distract him from focussing clearly on the matters currently in issue when it suited him to do so. In the absence of a specific connection between Mr Bailiff's particular delusions and either his general ability to participate in a trial or the impact of the delusions in relation to this particular trial, I cannot see that those delusions require me to find him unfit to plead.

Significance of 2003 finding of fitness to plead

that in 2003 Mr Bailiff was found to be unfit to plead and unlikely to become fit within 12 months; and

that subsequent consideration of Mr Bailiff's fitness to plead has amounted to repeated assessments that his condition has not changed since 2003.

From this he drew the logical conclusion that Mr Bailiff's fitness to plead has not changed and therefore that he remains unfit to plead.

88. However, the substantive (as distinct from logical) correctness of Mr Kukulies-Smith's conclusion depends on the validity of his premises, that is, on the correctness of the earlier findings and of the unstated premise that the test for fitness to plead was the same in 2003 as it is now. The 2003 test in fact differed from the current one only in minor respects (see [37] above), but even apart from this I have no basis for assuming that the Mental Health Tribunal determination in 2003 reflected the proper application of the legal tests for fitness to plead that apply in the ACT in 2010 (as discussed at [34] to [46] above). To the contrary, the conclusions reached by Dr George in 2003 (which seem to have provided the basis for the Mental Health Tribunal's 2003 determination, although I have not found an explicit statement to that effect) appear to be based on a range of assumptions that are inconsistent with the current tests. Whether they were in fact also inconsistent with the tests required to be applied by the Mental Health Tribunal in 2003 is not something I need to consider. Whatever the validity of the 2003 assessment, it seems to me that I am obliged to make an assessment based on the evidence before me now and the current law as I understand it to be, rather than considering myself bound by the 2003 determination by the Mental Health Tribunal that Mr Bailiff was unfit to plead.

Significance of Dr Lambeth's initiation of treatment order application

89. Mr Kukulies-Smith pointed to Dr Lambeth's evidence that following his examination of Mr Bailiff in respect of his fitness to plead, he had initiated an application for a treatment order. Dr Lambeth gave evidence that this was not his usual practice in relation to people referred for fitness to plead assessments.

90. It is undoubtedly the case that Mr Bailiff has suffered, and continues to suffer, one or more mental conditions that affect his ability to function "normally" within society. It may be the case that those conditions would sometimes or always justify the making and operation of a Treatment Order for Mr Bailiff's protection. However, the criteria for the making of a Treatment Order (see s 28, Mental Health (Treatment and Care) Act 1994 (ACT), set out in the Appendix) are quite different from the criteria for determining whether the presumption of fitness to plead is rebutted in a particular case, and so Dr Lambeth's commendable concern for Mr Bailiff as shown by his initiation of Treatment Order proceedings has no direct implications for the investigation that I am undertaking. In particular, a finding that a Treatment Order would be appropriate could not detract from the application of the relevant law about fitness to plead, and nor will my finding determine the appropriateness of a Treatment Order.

Written submissions on behalf of Mr Bailiff

91. In his written submissions filed after the hearing had finished, Mr Kukulies-Smith argued that in the ACT, "the inclusive and extensive definition of what may give rise to a person being unfit to plead is more consistent with a lower rather than higher threshold for a finding that a defendant is not fit". It is not clear to me that the ACT test is either inclusive or extensive by comparison with the Presser test; rather, it seems to be largely an attempt to paragraph the Presser test into legislative form. Indeed, a careful comparison of the Presser test and the current form of s 311(1) of the Crimes Act reveals that the only aspect of Smith J's description of the appropriate test that is not expressly reflected in s 311(1), either in Smith J's own words or in a very similar set of words, is the requirement that the accused be "able to make his defence or answer to the charge", which was omitted by amendment after Kesavarajah (see [36]). Given the ACT presumption of fitness to plead, that omission would seem to indicate a higher rather than a lower threshold for unfitness to plead. Nor does the comparison between the Presser test and the current ACT test appear to reveal any other basis on which I could find that the ACT legislation is intended to impose a lower rather than a higher threshold for finding unfitness to plead.

92. Mr Kukulies-Smith submitted, uncontroversially, that the statements from Taylor adopted by Gleeson CJ in Eastman "simply advance the commonsense proposition that the matters [covered by those statements] do not automatically lead to a finding of unfitness". He then goes on to say that "it should be noted that the paragraphs of R v Taylor adopted in Eastman do not preclude such matters being the basis of a finding that a person is unfit to plead". To the extent that this submission means that a person may be found unfit to plead even where one or more of the Taylor propositions is relevant, I have no argument with it. However, if Mr Kukulies-Smith intended to assert that a person may be found unfit to plead purely on one of the grounds rejected by the Canadian court in Taylor as not justifying a finding of unfitness to plead, that must be incorrect if one accepts Gleeson CJ's comment in relation to the Taylor propositions that in the ACT "each of the above propositions is sound, and they are consistent with the statutory test".

93. An example may be helpful. Proposition (a) from Taylor is as follows:

The fact that an accused person suffers from a delusion does not, of itself, render him or her unfit to stand trial, even if that delusion relates to the subject matter of the trial.

94. If Mr Kukulies-Smith is suggesting that (despite Eastman and Gleeson CJ's adoption of the Taylor proposition) the suffering of a delusion might in some situations, of itself, render an accused person unfit to stand trial even if that delusion does not render him or her unfit according to any of the paragraphs of s 311(1), that suggestion seems to me to be inconsistent with the law in the ACT as considered in Eastman.

95. Accordingly, I cannot see any basis in the ACT legislation for finding that the ACT test for fitness to plead is intended to set a lower threshold than the Presser test for a finding of unfitness to plead.

96. Mr Kukulies-Smith adverted briefly to two provisions of the Human Rights Act 2004 (ACT), specifically ss 21 and 30, which are set out in the Appendix to this judgment. Section 21 refers generally to the right to a fair trial, and s 30 requires that "Territory laws must be interpreted in a way that is compatible with human rights".

97. It is not clear to me that it is appropriate for me consider the Human Rights Act submission at all in this case, because I am not in a position to be satisfied that there has been compliance with s 34 of that Act, which requires notification to the Attorney-General in certain circumstances in which Human Rights Act questions are raised in court proceedings (that notification is not required if "the Territory" is a party to the proceeding, but whether the Director of Public Prosecutions is "the Territory" for these purposes has not to my knowledge been settled, and there are respectable arguments to be made against that proposition).

98. Mr Kukulies-Smith's submissions do not in fact seem to go beyond the argument that the Human Rights Act requires s 311(1) to be read in conjunction with the common law requirement that the accused can mount a "proper defence" so as "to temper the presumption of fitness found in s 312". I do not disagree with the submission that s 311 should be interpreted as incorporating the requirement that the accused is able to mount a "proper defence", but it is hard to see that on that basis the Human Rights Act advances the argument already put by Mr Kukulies-Smith by reference to judicial consideration of the operation of the Presser test (see [40] above).

99. However I would not be inclined to accept, without hearing proper argument about the question, that the protection of human rights necessarily requires that the test for unfitness to plead should be less stringent rather than more stringent. A finding that a person is unfit to plead may be seen as depriving the person of his or her human rights, in that the person is deprived of the full range of rights available to other accused persons facing a normal trial. A person who is not capable of exercising those rights must be treated differently from a person who is capable, to avoid the offensive spectacle of the full weight of the criminal justice system being brought to bear on a person who in one or more respects simply does not understand what is happening to him or her (see Gleeson CJ in Eastman at [64]), but it seems to me that human rights are not necessarily furthered by expanding the capacity of the authorities to identify individuals as incapable of participating fully in the legal system. The extract from Taylor quoted at [46] above is relevant to my concern.

100. As mentioned at [12] and [13] above, it is necessary to keep firmly in mind the distinction between the question of fitness to plead and the question of criminal responsibility for particular actions, questions which are dealt with quite separately in the ACT and, as far as I know, generally throughout Australia. It would not seem to be compatible with human rights to hold a person criminally responsible for an action where the person's moral responsibility for the action was seriously affected by mental impairment. But the protection of human rights required consistently with that proposition is not necessarily furthered by a less stringent approach to the unfitness to plead criteria, which, as already noted, may damage a person's human rights by excluding him or her from taking part in a proper trial and subjecting him or her to a special hearing; among other things, in the ACT a finding of unfitness to plead deprives the accused person of the possibility of a verdict of not guilty by reason of mental impairment (see Steurer at [33] to [35] and [88]).

101. In the circumstances in which this argument has been raised, and on the material currently before me, I do not see any basis for applying an interpretation of s 311 of the Crimes Act that differs from its interpretation apart from the Human Rights Act; however, this conclusion should not be read as reflecting a considered view that the Human Rights Act has no significance in the context of fitness to plead investigations.

Relationship between fitness to plead and Guardianship Order

102. As mentioned at [8] above, the new evidence provided by Mr Kukulies-Smith was that on 27 October 2009 the ACT Civil and Administrative Tribunal made an order that "the Public Advocate of the Australian Capital Territory be appointed Guardian of [Mr Bailiff] with powers limited to legal issues".

103. Mr Kukulies-Smith, in detailed and thoughtful submissions, argued that as a result of the making of this order, Mr Bailiff is not, as a matter of law, able to give instructions to his lawyer, and that therefore he must be found unfit to plead by reference to the test set out in s 311(1)(f), namely that he "cannot ... give instructions to [his] lawyer".

104. The relevant provisions of the Guardianship and Management of Property Act 1991 (ACT) (the Guardianship Act) are ss 4, 5, 7, 7B and 11. They are set out in the Appendix.

105. However, despite the care with which Mr Kukulies-Smith has argued in favour of his submission, and despite its superficial appeal, I am unable to accept it.

106. The s 7 criteria for the making of a Guardianship Order are expressed differently from, and do not seem to have any necessary overlap with, the tests for fitness to plead set out in s 311 of the Crimes Act. For instance, a person for whom a guardian is appointed under s 7 while their decision-making ability is impaired because of a physical condition would not necessarily satisfy the test in s 311(1) for unfitness to plead, because any inability to instruct a lawyer would not be due to disordered or impaired mental processes. Thus, it cannot be the case that a person for whom a guardian has been appointed is necessarily and automatically unfit to plead by reason of being unable to instruct a lawyer.

107. Section 312(3)(a) of the Crimes Act specifies that fitness to plead is a question of fact, and s 311(1)(f) seems to deal with the fact of the person's ability ("cannot") rather than with their legal capacity or any other legal restrictions on the scope for them to instruct lawyers. Mr Kukulies-Smith may be correct that s 11 of the Guardianship Act implies the effective exclusion of the legal powers of the person subject to the order. However, that does not necessarily mean that the person therefore "cannot ... give instructions to [his] lawyer" for the purposes of s 311 of the Crimes Act.

108. Furthermore, as Mr Kukulies-Smith pointed out, the making of a Guardianship Order does not render the protected person's "instructions" insignificant or ineffective; rather, the guardian is by s 4 of the Guardianship Act required to give effect to the protected person's wishes "as far as they can be worked out ... unless making the decision in accordance with the wishes is likely to significantly adversely affect the protected person's interests" (s 4(2)(a)). Where those interests would be adversely affected, the guardian is still required to give effect to those wishes as far as possible subject to the protection of the person (ss 4(2)(b) and (c)). That is, the guardianship arrangements assume that the person in question may retain a substantial capacity to express more or less rational wishes, and require that those wishes are given effect unless that would significantly affect the person's interests.

109. Finally, I note that during the hearing before me in September 2009, Mr Bailiff was already subject to a Guardianship Order, and Mr Kukulies-Smith was as a result instructed by the Public Advocate's office; this did not prevent Mr Bailiff and Mr Kukulies-Smith conferring, at Mr Bailiff's instigation, about questions to be asked in cross-examination of Dr Lambeth, with the result that Mr Kukulies-Smith asked a further series of questions of Dr Lambeth about a matter that he then relied on in his submissions.

110. In summary, the making of a Guardianship Order does not directly affect Mr Bailiff's physical or mental capacity to give instructions; it might restrict the scope for a lawyer to take account of Mr Bailiff'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.

111. None of Mr Kukulies-Smith's submissions have persuaded me that Mr Bailiff must be found unfit to plead in spite of his failure to satisfy any of the criteria for unfitness to plead set out in s 311.

Application for order under Crimes Act s 315(4)

112. As already mentioned, Mr Kukulies-Smith applied for an order under s 315(4) of the Crimes Act dismissing the charge against Mr Bailiff having regard to its trivial nature or the nature of Mr Bailiff's mental impairment.

113. The charge in this case carries a maximum penalty of 10 years imprisonment and a substantial fine. What Mr Bailiff is alleged to have done appears to have caused significant damage to a car being used by a person who was acting in pursuit of his obligations as the manager of a property owned by a welfare organisation. Whatever the rights and wrongs of the particular incident, it is hard to say that causing such damage in such circumstances is a trivial matter.

114. Mr Kukulies-Smith noted in written submissions that there was no evidence before the court about the value of the property damage caused, but I do not see that that obliges me to assume that only nominal damage was caused by the breaking of two windscreens. In that context I note Mr Bailiff's claim during the hearing before me that he had already paid for the replacement of the windscreens, and the fact that an offer to pay for the damage was also recorded in the police Statement of Facts; if Mr Bailiff has already compensated the car's owner for the damage he caused, that might explain the absence of a stated value for the damage or a claim for reparation.

115. Furthermore, nothing that arose during or as a result of the fitness to plead hearing suggests that the nature of any mental impairment suffered by Mr Bailiff should excuse him from a proper determination of his criminal responsibility, or that such a determination would be pointless in the sense that it would not convey any meaningful message to Mr Bailiff. In saying this, I do not assume that any meaningful message would necessarily be heeded by Mr Bailiff, but I have no reason to believe that he would not understand it.

116. Accordingly, I refuse Mr Kukulies-Smith's application for an order under s 315(4) of the Crimes Act dismissing the charge, and I shall now finalise the fitness to plead investigation.

117. Before doing so, however, and having regard to Dr Lambeth's willingness, expressed during his oral evidence, to take account of any further explanation that could be provided about how the fitness to plead test should be applied in the ACT, it may be worth summarising my views on that question. In the interests of completeness I have included some material drawn from Steurer that is not directly relevant to the question of Mr Bailiff's fitness to plead.

118. First, a person is presumed to be fit to plead (Crimes Act s 312(1)).

119. That presumption is rebutted, and the person is unfit to plead, if it is established on the balance of probabilities that the person's mental processes are disordered or impaired to the extent that the person cannot participate in the criminal process in certain ways (Crimes Act s 311(1)). Specifically:

A person is unfit to plead if he or she cannot understand the nature of the charge (Crimes Act s 311(1)(a)).

A person is unfit to plead if he or she cannot enter a plea to the charge or exercise the right to challenge jurors or the jury (Crimes Act s 311(1)(b)). This does not require that the person could articulate rational grounds for deciding whether to challenge a particular juror (Steurer at [41]).

A person is unfit to plead if he or she cannot understand that the proceeding is an inquiry about whether the person committed the offence (Crimes Act s 311(1)(c)).

A person is unfit to plead if he or she cannot follow the course of the proceeding (Crimes Act s 311(1)(d)). The person needs to understand what is going on in court in a general sense, but need not understand the purpose of all the various court formalities (Presser at 48). A view that the proceedings of the court are "gobbledygook" or "jargon", a lack of knowledge of legal terminology, or an admission by the person that sometimes he sits in court and lets people talk without absorbing anything, does not render the person unfit to plead (Steurer at [15] and [16]). The fact that the person's mental disorder may produce behaviour which will disrupt the orderly flow of a trial does not of itself render that person unfit to plead (Eastman at [26] and [27]).

A person is unfit to plead if he or she cannot understand the substantial effect of any evidence that may be given in support of the prosecution (Crimes Act s 311(1)(e)).

A person is unfit to plead if he or she cannot give instructions to the person's lawyer (Crimes Act s 311(1)(f)). However, the fact that a person's mental disorder prevents him or her from having an amicable, trusting relationship with counsel does not of itself mean that the person is unfit to plead (Eastman at [26] and [27]). The appointment of a guardian with powers in relation to legal issues under the Guardianship and Management of Property Act 1991 does not of itself mean that a person is unfit to plead ([110] above).

120. The person needs to have the capacity to present a proper defence, but it need not be an able defence. The fact that the person might have presented his or her defence in a better way if suitable medical treatment or medication had been provided, or if he or she had possessed greater intelligence or acuity of mind, is not relevant. The fact that a person suffers from a mental disorder which may cause him or her to conduct a defence in a manner which the court considers to be contrary to his or her best interests does not of itself mean that the person is unfit to plead. (Kesavarajah at 245; Rivkin at [297] to [298]; Clark at [129]; Eastman at [26] and [27]).

121. The fact that an accused person suffers from a delusion does not of itself render him or her unfit to plead, even if that delusion relates to the subject-matter of the trial (Eastman at [26] and [27]).

122. A person is not unfit to plead only because the person is suffering from memory loss. (Crimes Act s 311(2)).

123. A person's fitness to plead is not affected by his or her mental condition at the time when the person engaged in the conduct required for the alleged offence. The person's mental condition at the time of the conduct is relevant to his or her criminal responsibility for the offence (Criminal Code s 28), not to the person's fitness to plead. In particular, a person may be fit to plead even if, at the time of the conduct:

(a) the person did not know the nature and quality of his or her conduct; or

(b) the person did not know that the conduct was wrong, that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, was wrong; or

124. Finally, it should not be assumed that a person is necessarily better off, or that his or her human rights are better protected, by a finding that the person is unfit to plead.

125. I have examined each of the criteria set out in s 311(1) of the Crimes Act by reference to the views of each of Drs George and Lambeth and the behaviour of Mr Bailiff, have considered what I understand to be the applicable law, and have concluded that Mr Bailiff's ability to understand and participate in the legal process is not, or has not been established to be, currently compromised by any disorder or impairment of his mental processes to a degree that would render him incapable under any of those criteria. I find that the inquiry under s 311 of the Crimes Act has not established that Mr Bailiff is unfit to plead and therefore that the presumption in s 312 of fitness to plead applies.

126. I therefore find that Mr Bailiff is currently fit to plead to the charge of intentionally damaging property.

I certify that the preceding one hundred and twenty-six (126) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Solicitor for the Crown: ACT Director of Public Prosecutions

Date of written submissions: 23 September, 15 December 2009

Crimes Act 1900 (ACT)

(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 -

(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

(e) understand the substantial effect of any evidence that may be given in support of the prosecution; or

(2) A person is not unfit to plead only because the person is suffering from memory loss.

312 Presumption of fitness to plead, standard of proof etc

(2) The presumption is rebutted only if it is established, on an investigation under this division, that the person is unfit to plead.

(b) is to be decided on the balance of probabilities.

(4) No party bears a burden of proof in relation to the question.

Mental Health (Treatment and Care) Act 1994 (ACT)

[as in force at date of Dr George's 2003 assessment]

(3) The tribunal shall make a determination that a person is unfit to plead to a charge if satisfied that the person's mental processes are disordered or impaired to the extent that the person is unable -

(b) to enter a plea to the charge and to exercise the right to challenge jurors or the jury; or

(c) to understand that the proceedings are an inquiry as to whether the person committed the offence; or

(e) to understand the substantial effect of any evidence that may be given in support of the prosecution; or

(f) to give instructions to his or her legal representative.

Mental Health (Treatment and Care) Act 1994 (ACT)

[as originally enacted in 1994 and considered in Eastman]

"order to determine fitness" means an order of the Supreme Court under Part XIA of the Crimes Act requiring a person to submit to the jurisdiction of the Tribunal to enable the Tribunal to determine whether or not the person is fit to plead to a charge laid against the person.

Following such inquiry as the Tribunal thinks appropriate, the Tribunal shall determine, on the balance of probabilities -

whether or not a person who is subject to an order to determine fitness is fit to plead to the charge; and

if the Tribunal determines that the person is unfit to plead to the charge, whether or not the person is likely to become fit within 12 months after the determination is made.

The Tribunal shall not make a determination that a person is fit to plead to a charge unless satisfied that the person is capable of -

understanding what it is that he or she has been charged with;

pleading to the charge and exercising his or her right of challenge;

understanding that the proceeding before the Supreme Court will be an inquiry as to whether or not the person did what he or she is charged with;

following, in general terms, the course of the proceeding before the Court;

understanding the substantial effect of any evidence given against him or her;

giving instructions to his or her legal representative (if any); and

making his or her version of the facts known to the Court and to his or her legal representative (if any).

The Tribunal shall notify the Supreme Court of its determination in respect of a person and may make recommendations to the Court as to how the person should be dealt with.

Part 2 - Other legislation

Crimes Act 1900 (ACT)

315 Procedure if question reserved for investigation

(4) If the court considers that, because of the trivial nature of the charge or the nature of the defendant's mental impairment, it would be inappropriate to inflict any punishment on the defendant in relation to the offence, the court may decide not to carry out or continue the investigation and may dismiss the charge and order that the person be released.

mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.

mental illness is an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition (a reactive condition) resulting from the reaction of a healthy mind to extraordinary external stimuli.

(3) However, a reactive condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.

28 Mental impairment and criminal responsibility

(1) A person is not criminally responsible for an offence if, when carrying out the conduct required for the offence, the person was suffering from a mental impairment that had the effect that -

(a) the person did not know the nature and quality of the conduct; or

(b) the person did not know that the conduct was wrong; or

(2) For subsection (1) (b), a person does not know that conduct is wrong if the person cannot reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, is wrong.

Guardianship and Management of Property Act 1991 (ACT)

4 Principles to be followed by decision-makers

(1) This section applies to the exercise by a person (the decision-maker) of a function under this Act in relation to a person with impaired decision-making ability (the protected person).

(2) The decision-making principles to be followed by the decision-maker are the following:

(a) the protected person's wishes, as far as they can be worked out, must be given effect to, unless making the decision in accordance with the wishes is likely to significantly adversely affect the protected person's interests;

(b) if giving effect to the protected person's wishes is likely to significantly adversely affect the person's interests - the decision-maker must give effect to the protected person's wishes as far as possible without significantly adversely affecting the protected person's interests;

(c) if the protected person's wishes cannot be given effect to at all - the interests of the protected person must be promoted;

(d) the protected person's life (including the person's lifestyle) must be interfered with to the smallest extent necessary;

(e) the protected person must be encouraged to look after himself or herself as far as possible;

(f) the protected person must be encouraged to live in the general community, and take part in community activities, as far as possible.

5 When does someone have impaired decision-making ability?

For this Act, a person has impaired decision-making ability if the person's decision-making ability is impaired because of a physical, mental, psychological or intellectual condition or state, whether or not the condition or state is a diagnosable illness.

(1) This section applies if the ACAT is satisfied that -

(a) someone has impaired decision-making ability in relation to a matter relating to the person's health or welfare; and

(b) while the person has the impaired decision-making ability -

(i) there is, or is likely to be, a need for a decision in relation to the matter; or

(ii) the person is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the person's health, welfare or property; and

(ii) the person's interests will be significantly adversely affected.

Note 1 See s 8C in relation to appointment of a guardian for a child.

Note 2 A person's needs may be met, or the person's interests protected, under an enduring power of attorney (see Powers of Attorney Act 2006).

(2) The ACAT may, by order, appoint a guardian for the person, with the powers that the ACAT is satisfied are necessary or desirable to make decisions for the person in accordance with the decision-making principles.

Note The powers that may be given to a guardian are restricted under s 7B.

(3) The powers that may be given to a person's guardian include the following powers:

(a) to decide where, and with whom, the person is to live;

(b) to decide what education or training the person is to receive;

(c) to decide whether the person is to be allowed to work;

(d) if the person is to be allowed to work - to decide the nature of the work, the place of employment and the employer;

(e) to give, for the person, a consent required for a medical procedure or other treatment (other than a prescribed medical procedure);

(f) to bring or continue legal proceedings for or in the name of the person.

The powers that may be given to a person's guardian do not include the power to discipline the person or the power to do any of the following things for the person:

(e) give a consent required for a prescribed medical procedure for the person.

The powers given to a person's guardian or on a manager of a person's property are to be no more restrictive of the person's freedom of decision and action than is necessary to achieve the purpose of the order.

Note Also, the guardian or manager should exercise the powers in accordance with the decision-making principles (see s 4).

Human Rights Act 2004 (ACT)

(1) Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

(2) However, the press and public may be excluded from all or part of a trial -

(a) to protect morals, public order or national security in a democratic society; or

(b) if the interest of the private lives of the parties require the exclusion; or

(c) if, and to the extent that, the exclusion is strictly necessary, in special circumstances of the case, because publicity would otherwise prejudice the interests of justice.

(3) But each judgment in a criminal or civil proceeding must be made public unless the interest of a child requires that the judgment not be made public.

So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.

Mental Health (Treatment and Care) Act 1994 (ACT)

28 Criteria for making psychiatric treatment order

The ACAT may make a psychiatric treatment order in relation to a person if -

(b) the ACAT has reasonable grounds for believing that, because of the illness, the person is likely to -

(i) do serious harm to himself, herself or someone else; or

(ii) suffer serious mental or physical deterioration;

unless subject to involuntary psychiatric treatment; and

(c) the ACAT is satisfied that psychiatric treatment is likely to reduce the harm or deterioration (or the likelihood of harm or deterioration) mentioned in paragraph (b) and result in an improvement in the person's psychiatric condition; and

(d) the treatment cannot be adequately provided in a way that would involve less restriction of the freedom of choice and movement of the person than would result from the person being an involuntary patient.