JUDGMENT
1 HIS HONOUR: The accused, Damien Charles Bugmy, has been committed to this Court for trial for the murder of his de-facto partner, Anita Rose Williams, at Ivanhoe on 14 June 2008. The question of his fitness to stand trial has arisen, and that issue has been tried by me pursuant to s 11 of the Mental Health (Forensic Provisions) Act 1990.
2 Put shortly, it is the Crown case that the accused fatally stabbed Ms Williams at the house where they were staying in the afternoon of 14 June 2008. Their relationship had not been without its difficulties. He had been drinking during the day of the killing and was well affected. There was no eyewitness to the killing, but the accused went to a nearby house and raised the alarm, asking the occupants of that house to "come and check" Ms Williams because "there is something wrong with her". Ambulance officers and police arrived, and the accused said to the police, "She's dead. I can't believe I killed her."
3 The accused himself had suffered stab wounds, although there is evidence that they were self-inflicted after the killing. He was examined by a doctor at Broken Hill Base Hospital, and to that doctor he claimed that the deceased had stabbed him. Later, at Broken Hill Police Station he declined to be interviewed about the matter.
4 On the issue of fitness to stand trial, the accused was assessed by Dr Richard Furst, psychiatrist and Professor Susan Hayes, psychologist, on behalf of the Legal Aid Commission, and by Professor David Greenberg, psychiatrist, for the Crown. All these experts were guided by the familiar and helpful examination of fitness to stand trial by Smith J in R v Presser [1958] VR 45. Explaining the minimum requirements to establish an accused's fitness, his Honour said at 48:
"He 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."
5 Dr Furst, Professor Greenberg and Professor Hayes provided reports, and Dr Greenberg and Professor Hayes gave oral evidence. Given the way the evidence unfolded, it is unnecessary to go to the detail of the reports and that oral evidence.
6 In his accounts to the three experts, the accused appeared to have at best a patchy recollection of the day of the offence, and he said that he had no memory at all of the killing or the circumstances of it. He is an Aboriginal man, with a troubled background and limited education, and a long history of abuse of alcohol and illicit drugs. He gave a history of psychotic symptoms, in particular the experience of hearing voices, including on the day of the offence. Both Dr Furst and Professor Greenberg diagnosed him as suffering from alcohol dependence disorder and Dr Furst believed him to have developed a syndrome called alcoholic hallucinosis, which he explained in his report as "the occurrence of auditory hallucinations, often of a persecutory nature, seen in acute intoxication, acute withdrawal states, and in a chronic, residual form." Professor Greenberg also considered him to suffer mild mental retardation. It is that retardation or disability which I find decisive of the question I must decide.
7 In answer to questions from the three experts, he appeared to have a rudimentary understanding, consistent with his background and limited education, of the trial process: the fact that the trial was an inquiry into whether he was guilty of the murder, the role of the prosecutor and of his own legal representatives, the role of the jury and (more vaguely) that of the judge. Dr Furst and Professor Greenberg saw that understanding as adequate, but Professor Hayes was more guarded about the matter.
8 Dr Furst and Professor Greenberg were also of the view that he had sufficient capacity to meet the other important aspect of the Presser requirements: the ability to make his defence to the charge, including understanding the evidence against him and explaining his version of events to his legal representatives and, if necessary, to the court. It is on this crucial aspect that Professor Hayes does not agree, and I find her evidence more persuasive than that of the two psychiatrists. Her view is also consistent with the evidence of the accused's solicitor, Ms Emma Manea.
9 Professor Hayes had the advantage of assessing the accused's intellectual capacity through psychological testing. She reported that the test results placed him "in the category of moderate intellectual disability at a level lower than 99.9 percent of the population". In oral evidence, she said that effectively he was functioning at the level of a primary school child. In the light of the test results and her assessment of him after interview, she questioned his capacity to process and retain information. She expressed the view that he would "not be able to sustain attention throughout the length of the trial and … not be able to inform his legal team about important matters relevant to his defence," citing Kesavarajah v The Queen (1994) 181 CLR 230.
10 She concluded her report in this way:
"In my opinion, he is unfit to be tried because although he understands some (but not all) of the Presser criteria, he will have great difficulty in sustaining his attention throughout the course of the proceedings, being able to follow the evidence and being able to instruct his legal representatives. … it seems unlikely that the client would be able to follow the course of proceedings and understand any complex issues arising out of the proceedings. Indeed, I would go further and say that even regarding some quite simple issues, it would be difficult for him to understand, respond to and to give instructions to his legal representatives."
11 An important question also arises about the reliability of any information he might supply to his legal representatives. This was fleshed out in the course of cross-examination of Professor Hayes. Asked whether he would be able to follow aspects of the evidence against him, she replied that he would be "able to follow that evidence as a story". Arising from his asserted lack of memory of the killing, the following exchange occurred:
"Q. He would be able to, in relation to people giving their evidence as he heard it, be able to be approached and asked is there anything that he's remembered because of what he's heard?
A. Yes.
Q. And if he gave a positive answer you would be able to ask what is it that you have remembered?
A. Well, yes, he would be able to say what he thought he remembered. The accuracy of it would be not ascertainable."
12 This led to the following exchange:
"… The information he gives as to what he remembers, what would you say to a proposition that what he may be then repeating is not what his actual memory was but that which he believes to be his memory as a result of suggestions from what he's been hearing?