R v Fisher [2011] ACTSC 56

Crimes Act 1900 (ACT), ss 311, 312, 314(1)(2), 315, 316, 375A

Guardianship and Management of Property Act 1991 (ACT), s 7

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

R v Presser [1958] VicRp 9; [1958] VR 45

Bailiff v The Queen [2011] ACTCA 7

Egan and Ors v JG [2010] ACTSC 53

R v Mailes [2001] NSWCCA 155; [2001] 53 NSWLR 251

R v Taylor (1992) 77 CCC (3d) 551

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

R v Khallouf [1981] VicRp 38; [1981] VR 360

R v Stevens [2010] 107 SASR 456

R v McKitterick (2004) 36 SR (WA) 115

R v Polanski [1999] NSWSC 433

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

R v Dunne [2001] WASC 263

R v Smith [2008] NSWDC 23

R v Tuigamala [2007] NSWSC 493

R v Stevens [2009] SADC 143

R v Griffith [2008] ACTSC 77

R v Miller (No 2) [2000] SASC 152

R v House [1986] 2 Qd R 415

R v Monaghan [2009] ACTSC 61

Ierace, M, Intellectual Disability: a Manual for Criminal Lawyers (Redfern Legal Centre Publishing: Sydney, 1989)

American Psychiatric Association, Diagnostic and Statistical Manual IV - Text Revision

1. Dennis Fisher is unfit to plead and is unlikely to become fit to plead within twelve months.

1. An essential element to a fair trial, to which all charged with a criminal offence are entitled, and which is now mandated by s 21 of the Human Rights Act 2004 (ACT), is that the accused person can participate to the fullest extent he or she desires in the trial.

2. The elements of such participation have been summarised by the High Court in Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230 in terms of the minimum standards with which the accused must comply before he or she can be tried without unfairness or injustice. The court described them (at 245) as follows:

Those standards ... require the ability (1) to understand the nature of the charge; (2) to plead to the charge and to exercise the right of challenge; (3) to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged; (4) to follow the course of the proceedings; (5) to understand the substantial effect of any evidence that may be given in support of the prosecution; and (6) to make a defence or answer the charge.

3. This follows the well-known elucidation of them by Smith J in R v Presser [1958] VicRp 9; [1958] VR 45 (at 48). In this Territory, they have now been adopted legislatively in s 311 of the Crimes Act 1900 (ACT). If those standards are not met, the legislation provides that the accused is then unfit to plead.

311 When a person is unfit to plead

(1) A person is unfit to plead to a charge if the person's mental processes are disordered or impaired to the extent that the person cannot -

(a) understand the nature of the charge; or

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

(c) understand that the proceedings is an inquiry about whether the person committed the offence; or

(d) follow the course of the proceeding; or

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

(f) give instructions to the person's lawyer.

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

5. The context in which an inquiry into this issue is to be conducted is set out in s 312 as follows:

312 Presumption of fitness to plead, standard of proof etc

(1) A person is presumed to be fit to plead.

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

(3) The question of a person's fitness to plead -

(a) is a question of fact; and

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

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

6. The accused, Dennis Fisher, appears to have been charged with two counts of dishonestly riding in a motor vehicle without the consent of the owner. I say "appears to have been charged" with these offences because, although they were the charges on which he was committed for trial to the Court, no indictment has yet been filed, nor a statement of facts. Both would have been helpful in addressing the issue before me (see below at [29] 15).

7. These charges are contrary to s 318(2) of the Criminal Code 2002 (ACT) and render Mr Fisher liable to a maximum penalty of 500 penalty units (a fine of $55,000) or five years imprisonment or both.

8. It appears he was arrested on 11 November 2009 and appeared the next day in the Magistrates Court. Bail was refused and on 5 December 2009, he was committed for trial to this court. The Magistrates Court, under s 314(2) of the Crimes Act, also reserved the question of Mr Fisher's fitness to plead for inquiry before this court.

9. When Mr Fisher appeared before me on 18 February 2010, I was satisfied that there was a real and substantial question about his fitness to plead and reserved the question for investigation (s 314(3) of the Crimes Act). The proceedings were then adjourned and a direction given that Mr Fisher be examined by a psychiatrist or other health professional for the purposes of a report being prepared as to Mr Fisher's fitness to plead.

10. That investigation was held on 20 August 2010. Dr Graham George, Consultant Psychiatrist, examined Mr Fisher for this purpose and provided a report dated 22 January 2010. He had also earlier examined Mr Fisher and his reports of 6 March 2008 and 22 May 2009 were also tendered. The Report of 2009, however, was not directed to the question of fitness to plead. Dr George was also called to give evidence. It seems clear that, as the proceedings are inquisitional, not adversarial (Bailiff v The Queen [2011] ACTCA 7 (at [16])), both parties were at liberty, as they did, to cross-examine Dr George.

11. Also tendered were a Psychological Report dated 19 July 2006 by Mr Keith Baker, Psychologist of Mental Health ACT, and a Psychological Report dated 4 September 2006 by Ms Eryn Davies and Ms Kathleen E Jones of the Office for Children, Youth and Family Support. The authors of these reports were not called to give evidence.

12. On 13 April 2010, the Public Advocate was appointed guardian of Mr Fisher under s 7 of the Guardianship and Management of Property Act 1991 (ACT) with powers limited to legal issues. A copy of the sealed order of the ACT Civil and Administrative Tribunal to that effect was tendered.

13. At the time of the hearing, Mr Fisher was a 21 year old man who had a history of being charged with offences.

14. He had a challenging upbringing. He had never met his biological father and was brought up by his mother and step-father, but he said he had difficulties with his step-father. He had seven step-siblings, all born to six different fathers. He described his childhood as "upsetting".

15. His family showed a history of schizophrenia; his mother had suffered from schizophrenia and his half-brother from either bipolar disorder or schizophrenia. Mr Fisher claimed to some of the professionals that he had been hearing voices since early 2006 but it was unclear whether that was related to his illicit drug use or incipient psychosis.

16. He attended a special school, though behavioural problems led to him leaving and going to Stirling College in Year 9 but he finished his education that year.

17. Mr Fisher clearly had learning difficulties and on testing in 1996 was found to have a "Full Scale IQ" of 65, placing him in the "Extremely Low range (1st percentile) when compared to the population of his age related peers". His "Verbal IQ" was 71 (the 3rd percentile rank - borderline) and his "Performance IQ" was 64 (the 1st percentile rank - extremely low). The psychologists who tested him diagnosed him as suffering from a Mild Intellectual Disability. He had difficulty with reading, writing, spelling and mathematics.

18. The psychologists recommended testing for his adaptive functioning and, although I did not have a formal report, the evidence was that this testing assessed him as functioning in an adaptive sense at the level of a nine-year old.

19. At fourteen years of age he was diagnosed with epilepsy and told Dr George that he suffered petit mal epilepsy on a regular basis, "mean[ing] that he had 'absences' of several seconds at any time during the day". In addition, he said, he would suffer a grand mal seizure every month or so. He had been prescribed anticonvulsant medication.

20. Mr Fisher had really only had work as a kitchen hand, the longest period of employment being for nine months.

21. During the interviews with Dr George, he presented well. He was responsive with a reasonable range of emotional expression and did smile on several occasions, establishing a degree of rapport. His thought form was normal, with no evidence of looseness of association, tangential thinking, thought blocking or other evidence of formal thought disorder. There was no evidence of pressure of speech.

22. In his Report of 2010, Dr George assessed him as having "a reasonable level of insight into his current circumstances", but felt that at times his judgment was "questionable". During his interview in 2009, Mr Fisher did appear to suffer a petit mal "absence", but none was reported in the other reports.

23. Dr George was concerned about Mr Fisher's memory. He described him as having a very poor short-term memory. The problem this caused was that to understand a concept he had to lay down a memory, retain it and utilise it at a cognitive level to integrate the information. In this area, his capacity was poor; his general knowledge was poor and he appeared to have no abstract thought ability.

24. Dr George's view was that Mr Fisher had grave difficulty with verbal reasoning and understanding of concepts which he may appear to understand but not have a true understanding of what the concept is.

25. He acknowledged that his deficits and intellectual difficulties had been present from birth and that he had not changed much over the time that he had seen him since 2008, because of the similarity of presentation on each occasion. Clinically, Dr George considered that he had not changed much over time and that the court could rely on the reports, both his own and the psychological reports, as representing Mr Fisher's current position. He explained that, in particular, Mr Fisher's degree of co-operation was important and that this was difficult to feign, so that one could experience false lows but not false highs. Dr George did acknowledge the possibility of some improvement over time but noted that the American Psychiatric Association, in its Diagnostic and Statistical Manual IV - Text Revision (DSM-IV-TR), estimated changes of up to about a five point difference in such circumstances but this would still leave Mr Fisher in the borderline range, at the lower end.

26. It was instructive to hear some of the concerns that Dr George had. For example, part of his evidence included the following:

DR GEORGE: ... when I'm talking about understanding the process or proceedings in court, I ask people whether they understand the structure of the court in that there may be a judge or a magistrate, there may be a prosecution, there may be a defence. And that information can be presented by different people to substantiate a case. I'd try and put it in very simple terms. And often people with intellectual deficit may be aware of some of that structure in sort of almost a glazed fashion, but not in detail.

... I think that in Mr Fisher's case, he has difficulty in articulating what he thinks. He could articulate it in fairly simple terms, but ...

MS HUNTER: But he'd still understand it?

DR GEORGE: Yes, but I ...

MS HUNTER: Given that you were - use analogies to say criminal shows on television where there is a judge and a jury and there are defence counsel and the like as an example?

DR GEORGE: Probably some sort of passing understanding, but maybe not able to put it in context.

The criteria for fitness to plead

27. In approaching the investigation, I have regard to the presumption in s 312(1) and (2) of the Crimes Act that a person is presumed fit to plead and that the presumption is rebutted only if it is established on the balance of probabilities, with no party bearing the burden of proof, that as a fact, Mr Fisher is unfit to plead. Of course, in order to find Mr Fisher unfit to plead, it is only necessary to find him unfit on one of the criteria set out in s 311(1) of the Crimes Act, for all are required as minimum standards for fitness to plead.

28. In Egan and Ors v JG [2010] ACTSC 53, I addressed the broad outlines of the approach to these issues. Similarly, Penfold J in R v Bailiff (2010) 5 ACTLR 1 (at 26; [119]) summarised what her Honour saw as the law.

29. It is perhaps useful to identify in the present context what I extract from these authorities and the authorities on which they, in turn, have relied, and the principles I should apply. I do this particularly, but not limited to, the situation of an accused person with an intellectual disability. Those principles are:

1. The notion in s 311 of the Crimes Act of a person's mental processes being disordered or impaired should not be read down so as to exclude the developmentally or intellectually disabled: R v Mailes [2001] NSWCCA 155; [2001] 53 NSWLR 251 (at 296).

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

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

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

5. That an accused person would have presented a better defence had he or she been on medication not provided at trial is not relevant to the question of fitness to plead: R v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284 (at 297; [298]).

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

7. That is to say, fitness to plead does not require an accused person to have a particular level of intelligence, legal knowledge or experience, or common sense: R v Bailiff (at 12; [44]).

8. The court may take into account the appearance and behaviour of an accused when he or she appears for trial: R v Khallouf [1981] VicRp 38; [1981] VR 360 (at 364-5); Bailiff v The Queen (at [16]).

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

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

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

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

13. The tests set out in s 311 of the Crimes Act do not require a complete understanding of the proceedings and the issues, especially of substantive law, to which they are addressed: Ngatayi v The Queen [1980] HCA 18; (1980) 147 CLR 1 (at 8).

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

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

16. When an accused person is represented by counsel, that is a relevant factor to be taken into account: Ngatayi v The Queen (at 9); R v Dunne [2001] WASC 263 (at [14]).

17. The length of the trial is also a relevant factor to consider: Kesavarajah v The Queen (at 245-6).

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

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

30. This list is, of course, neither comprehensive nor exhaustive and the variety of circumstances that confront a court required to decide on the accused's fitness to plead will mean other matters are relevant and helpful.

31. The court is, of course, not bound by the opinion of experts, but will give such opinion great weight, though it is important for the experts to address the correct questions and to provide evidence that is applicable to the circumstances. For example, it is important for the experts to apply to the criteria a standard that matches the reality of the trial. As Davey DCJ said in R v Stevens [2009] SADC 143 (at [29]):

In my view neither of the psychologists properly understood the process of representation in a trial such as this nor the reality of the decisions that an accused person must make. They seem to be confused between the tactical and legal decisions that are made in criminal proceedings which obviously require intelligence and training of high order and the position of an accused person represented by counsel. I note the submissions made on behalf of the applicant with respect to the decisions to be made for a potential separate trials application. I observe that it would be rare for any accused person to understand the legal niceties underlying such an application; that would be a decision made very much as a result of advice from a legal representative. Contrary to the views expressed by the psychologists, I am of the view that the responses given by the applicant in the Police interviews and also the psychological interview processes demonstrate a sufficient level of understanding or potential comprehension ...

32. I note that I did see Mr Fisher during the course of the hearing, though there was nothing remarkable in his demeanour during the hearing. I did not see any video recording of his interaction with police.

33. Indeed, I did not have any information about Mr Fisher's interaction with police; he may not have participated in an interview which was recorded.

34. Having regard to all these matters and the charges Mr Fisher is facing, I turn to consider the specific criteria set out in s 311 of the Crimes Act:

(a) Could Mr Fisher understand the nature of the charge (par 311(1)(a))?

35. Dr George in his 2010 Report noted that Mr Fisher appeared to understand the nature of the charge preferred against him. It was, after all, not a very complicated one and one that, it appeared from what Dr George said, was involved with something he passionately wanted to do - drive cars - but which he knew that his epilepsy effectively prevented.

36. Neither Ms M Hunter, who appeared for the prosecution, nor Ms B Boss, who appeared for Mr Fisher, challenged this position.

37. I am satisfied, on the balance of probabilities that, on this criterion, Mr Fisher is not unfit to plead.

(b) Could Mr Fisher enter a plea to the charge and exercise the right to challenge jurors or the jury (par 311(1)(b))?

38. Dr George noted, in his 2010 Report, Mr Fisher understood the entering of a plea of guilty. Ms Boss referred to what I said in Egan and Ors v JG (at [86] to [88]) that it had to be "a deliberate plea made with recognition of the implications" (see also R v Griffith [2008] ACTSC 77 (at [28])). That is, as Martin J said in R v Miller (No 2) [2000] SASC 152 (at [42]), the plea must be based upon an understanding of the likely consequences.

39. Unfortunately, in the evidence, this departed on a tangent about mens rea, but it is a simpler concept of an acceptance of the consequence of a finding of guilt, which records the commission of the offence and justifies the intervention of the court by way of imposition of sentence.

40. Despite some confusion, I am satisfied on the balance of probabilities that Mr Fisher could enter a plea as required.

41. The second element of this criterion was more problematic as Dr George did not address this issue in his 2010 Report. Ms Hunter asked about this omission and Dr George answered that he did not record whether he had asked about this; if he did so, he did not record the answer. This is a pity in light of his 2008 Report.

42. If there is no evidence, then the presumption of fitness applies. The evidence can, of course, include matters other than the expert's report or reports, but it is important for an expert to address all relevant issues.

43. Dr George, however, did address this issue in his 2008 Report, where he was unequivocal. He reported:

[Mr Fisher] said that he felt quite capable of entering a plea of 'guilty' or 'not guilty' but he said he could not understand his right to challenge a jury or a juror. Despite this being explained to him in simple terms, he said he could not really understand what was being said.

44. Dr George acknowledged that Mr Fisher could learn from experience. If he had experience in courts, he may have understood the right to challenge a juror by now. There was, however, no evidence that Mr Fisher had such experience since 2008. In any event, Dr George was very hesitant in asserting how likely it was that even such an experience could inform Mr Fisher's understanding for his memory difficulties would prevent such a concept formation.

45. Apart from this issue, Dr George's opinion, though formed in 2008, was not challenged so far as this criterion is concerned.

46. Under cross-examination from Ms Boss, Dr George did express hesitation about the capacity Mr Fisher would have to understand challenging a juror and felt that, if he had not seen it done, it would certainly be very difficult for him to understand and deal with it.

47. I am satisfied on the balance of probabilities that Mr Fisher is not unfit to plead on the basis of his ability to enter a plea to the charge but that he is unfit to plead on the basis of a lack of ability to challenge jurors or the jury.

(c) Could Mr Fisher understand that the proceedings are an inquiry about whether he committed the offence (par 311(1)(c))?

48. On this criterion, Dr George reported in his 2010 Report that Mr Fisher "did not particularly understand" this concept - he "sort of" understood it. Dr George then said he explained in simple terms how the proceedings worked and he said that Mr Fisher realised that evidence could be presented to the court to establish his guilt.

49. Under examination by Ms Hunter, Dr George said he felt Mr Fisher did not have "much of an understanding and that it was difficult for him to know whether his answers were really betraying a true understanding". In his 2008 Report, Dr George noted that Mr Fisher had not really understood that the court processes revolved around enquiries as to whether an offence had been committed. He did say then that, at some level, he did understand that evidence could be presented in order to establish the case.

50. Unfortunately, Dr George could not recall, and had not recorded, the terms of the conversation he had with Mr Fisher. This made it difficult to assess or to evaluate the opinion he expressed and the level of understanding that Mr Fisher had. A more fulsome record, as, for example, is disclosed in cases such as R v Tiugamala, would be helpful.

51. When questioned by Ms Boss, Dr George stated that he felt Mr Fisher would struggle with the nature of the proceedings, though he described that Mr Fisher would have a basic level of understanding, but without a real context. I did not really understand what that meant.

52. It seems to me that Mr Fisher's basic understanding, in the light of the description given and the other material I had, did not satisfy me that Mr Fisher did not have a sufficient level of understanding. Accordingly, I am not satisfied on the balance of probabilities, that, on this criterion, Mr Fisher is unfit to plead.

(d) Could Mr Fisher follow the course of the proceedings (par 311(1)(d))?

53. In respect of this criterion, Dr George, in his 2010 Report, referred to a "limited understanding" of court processes. It was not entirely clear how he saw this criterion. For example, he said that Mr Fisher "was not able to understand legal language" and that he "often did not appreciate at any comprehensive level what was being said". The required understanding is more basic: it is about witnesses giving evidence, counsel addressing, the judge summing up and the jury deciding the verdict. It is not necessary to understand legal language, though the concepts they represent need sometimes to be explained and understood.

54. Although not expressly mentioned by Dr George in his Report, this is where Mr Fisher's attention span and concentration problems may have been very relevant.

55. In addition, in his 2008 Report, Dr George said that Mr Fisher reported "great difficulty following the process of court and the proceedings of the court".

56. In his oral evidence, Dr George did refer to Mr Fisher's limited attention span and concentration and his episodes of petit mal seizure. In response to a question from Ms Boss, he more categorically stated "I don't think he could follow proceedings".

57. I am hesitant to make a finding on this criterion for I fear that the material in Dr George's Reports are not as clearly directed to this issue as is desirable. The circumstances of Mr Fisher's condition and the background evidence make up for this to some extent and I am satisfied, on the balance of probabilities that, on this criterion, he is unfit to plead.

(e) Could Mr Fisher understand the substantial effect of any evidence (par 311(1)(e))?

58. This criterion is not really addressed in Dr George's 2010 Report nor in his 2008 Report.

59. In answer to a question from Ms Hunter, Dr George did say that he thought that "if everything was spelt out in very simple terms he would understand that sort of information". That seems to me to show a sufficient level of understanding such as not to reach the threshold of overcoming the presumption in favour of fitness to plead.

60. In answer to Ms Boss, Dr George really confirmed this view, saying "I think he'd understand that concept [sic]" but this seemed from the rest of the answer more related to the course of the proceedings. The next question and answer seemed more relevant:

MS BOSS: But as I understand you, he wouldn't understand the consequence of what was being said, that what the facts being presented, what that actually meant?

DR GEORGE: No, I don't think he'd be able to integrate it.

61. Regrettably, I am not entirely clear what "integrate it" means in this context. It seems to me that the earlier approach was clearer, namely that he would be able to comprehend the consequences of evidence if explained and, of course, he was here represented by counsel. Some assistance would be needed, but it seems on the evidence before me that this assistance would overcome the initial difficulty so that he would appreciate the substantial effect of the evidence.

62. On the balance of probabilities, I am not satisfied that, on this criterion, Mr Fisher is unfit to plead.

(f) Could Mr Fisher give instructions to his lawyer (par 311(1)(f)?

63. This is quite often a principal criterion relied on by those who challenge the fitness to plead of an accused person. It is clear that some details of the interaction with his or her lawyer can be helpful to the court, particularly as mental health professionals can sometimes misunderstand the actual dynamics of the giving and receiving of instructions to and by lawyers. In this context, I refer to what Davey DCJ said as noted above (at [31]).

64. On appeal in R v Stevens, the Court of Criminal Appeal upheld the decision of Davey DCJ. The court expressly noted (at 463; [33]):

The judge referred to a number of deficiencies in the material before her. She noted that there was no evidence led from any support person who had worked with the appellant; that there had been no evidence adduced from any persons who had acted for the appellant in the past of any difficulty in taking instructions, advising or acting for him. The judge had raised her concerns in this regard during the hearing, and granted an adjournment for the appellant's advisers to consider whether any former legal advisers should be called to give evidence.

65. No particular form of evidence is required, but reliance only on experts can risk the wrong question being answered.

66. The test is not too high. In this context, the Full Court of the Supreme Court of Queensland addressed the issue in R v House [1986] 2 Qd R 415, where Connolly J (with whom Ambrose J agreed and Williams J generally agreed) said (at 422):

Capacity to instruct counsel involves understanding the evidence which is led so as to be able to inform counsel whether it is true or not and whether there are other facts which qualify or explain the evidence adduced. It does not involve understanding the law especially if, as in this case, he had the benefit of counsel.

67. Thus, Dr George, in his 2010 Report, rather missed the point when he noted:

He indicated that he would only listen to his legal adviser. He would not know what questions to ask. He gave an indication to suggest that he would not even understand what could be relevant in terms of informing a solicitor about his particular case.

68. His 2008 Report did not really advance the issue for it merely said that Mr Fisher "had no real knowledge of how to instruct a legal representative".

MS HUNTER: Now, the next criteria you asked him about, was he able to talk to his solicitor about the particular case and what he felt was important in relation to his case and you said that he indicated he would only listen to his legal advisor. What did you ask him? How did you get across this concept to him?

DR GEORGE: Well, again, I can't tell you what I asked him. Normally I say, "Do you feel you have - do you feel you can talk to your solicitor about your case? Could you tell your solicitor what you want to do with your case? Do you want to plead guilty or do you want to plead not guilty? Are the circumstances that have occurred in relationship to this particular incident that you've been involved in that you need to talk to your solicitor about so that he can actually talk to - present that information in court for you on your behalf." That's the type of thing that I would say in a situation like this.

MS HUNTER: But what - didn't he tell you that he was able to say that? That he could say, "I'm guilty" or, "I'm not guilty"?

DR GEORGE: He understood that concept, but I'd have to refer to my report again as to what I actually said, but he didn't - I don't think he impressed me as having the ability to really inform his solicitor adequately.

MS HUNTER: But he said - he indicated he would only listen to his legal advisor, he would not know what questions to ask. Well, indeed that could be said of many of the people in this community who have never had dealings with lawyers or courts before and indeed one could assume that people go to lawyers for their advice?

DR GEORGE: M'mm.

MS HUNTER: Is it the case that Mr Fisher was unable to even explain to his lawyer that he'd been caught doing something that was illegal, he'd been charged and that he could tell him either he was guilty or not guilty?

DR GEORGE: Look, I think that if his solicitor asked him questions about an offence, he would probably - for example, I was just reading, I think, one of the offences in 2008, he stole a car and he got a call from his girlfriend and something had happened and she was distressed so she wanted to be picked up and he thought, "Well, the only way I can pick her up is to steal a car and - grab a car and go and pick her up" and so he'd probably tell his solicitor about what happened. But he probably wouldn't be aware of all the implications of what he was saying and tends to emphasise that perhaps at the time when he engages in these sort of activities, much of his behaviour is impulsive and not based on being thought out or not based on thinking about consequences or not understanding the rules of society the way the rest of us do, so on and so forth.

MS HUNTER: But indeed, he's still able to advise his solicitor of what he's done, what he's been charged with, not using legal terminology, but ...?

DR GEORGE: Sure.

MS HUNTER: ... that he'd pinched a car and he got done for driving the car?

DR GEORGE: Yes.

MS HUNTER: He's able to tell his solicitor that, he's able to give that information and seek advice in respect to that?

DR GEORGE: Yes, but then his solicitor would actually have to fill in a few gaps like the fact that he suffers epilepsy, that he has absences, that he has grand mal seizures that could cause him to have brain damage if they were severe and that sort of thing.

70. In answer to questions from Ms Boss, Dr George again referred to the inability of Mr Fisher to instruct his lawyers "adequately". He did not really identify what "adequately" meant, leaving it quite open on the evidence above to conclude that he had a sufficient though limited ability such that the threshold for unfitness had not been reached.

71. It is also relevant that Dr George did say that he had no difficulty in communicating with Mr Fisher and in obtaining quite a detailed history from him.

72. Dr George did say that Mr Fisher may omit issues of information important to his lawyers, such as his medical condition. It is by no means apparent to me how his condition is relevant to whether he is guilty or not of the offences with which he has been charged. In any event, he was reported to be able to tell Dr George his medical condition in quite some detail (see [19] above) and I can see no reason why he could not similarly tell his lawyers.

73. He did also refer to memory problems but these are excluded from consideration under s 311(2) of the Crimes Act.

74. A good example of the evidence not meeting the criterion is the following:

MS BOSS: So I suppose in - would it be fair to summarise that as he wouldn't be able to alert his lawyer to some relevant fact or relevant information because he wouldn't be capable of identifying what was relevant in the circumstances?

DR GEORGE: I think that's a good explanation. He could probably give a very basic concrete description of what happened without worrying about whether he's putting himself in a worse situation or whatever. But he wouldn't be able to explain it in the way you've just described.

75. Relevance is very much an issue that the lawyers for an accused person must address. Most clients of lawyers have a poor understanding of relevance for they do not often understand the legal foundations and implications of their circumstances. This is an important value that lawyers provide in their legal services delivered to their clients.

76. Indeed, the basic concrete description is usually exactly what the lawyer needs to advise and is often more useful than instructions filtered through an often incorrect understanding of the law.

77. I am satisfied, on the balance of probabilities, on this criterion, that Mr Fisher is not unfit to plead.

78. I have found that, on two of the criteria under s 311(1) of the Crimes Act, Mr Fisher is unfit to plead. That results in a finding that he is unfit to plead.

79. Section 315A(3) requires me to find whether he is unfit to plead, then s 315A(4) provides:

(4) If the court finds that the defendant is unfit to plead, the court must also decide whether the defendant is likely to become fit to plead within the next 12 months.

80. Neither Dr George's 2010 Report nor his 2008 Report addressed this issue. No specific questions were addressed to him in the hearing. This is not only a pity but at least an unfortunate omission in the conduct of the proceedings by the parties. It is also fair to note that I did not raise the issue with either counsel.

81. I do not wish to leave the situation unresolved if at all possible. That was the unsatisfactory position in R v Monaghan [2009] ACTSC 61.

82. It is clear that Mr Fisher's disability arises from an intellectual disability. That does not necessary lead to only one result under s 315A(4). As was said by Ierace, M in Intellectual Disability: a Manual for Criminal Lawyers (Redfern Legal Centre Publishing: Sydney, 1989) (at 78-9):

The condition of intellectual disability, however, is permanent. Although not 'curable', generally such people may acquire a degree of knowledge and adaptive skills if taught in an appropriate way. Thus theoretically, it may be possible for some intellectually disabled accused who lack the requisite understanding of the court process to acquire such understanding within the 12 month period, so that they would then be 'fit to be tried'.

Instances where an intellectually disabled person who has been found unfit to be tried becomes fit within 12 months are likely to be rare. If so, the disability is likely to be mild or in the upper moderate range, rather than more severe. Whether it is probable in a particular instance may depend not only upon the degree of disability, but also upon the person's initial level of education, the services (if any) which the [court] anticipates will be made available to the accused in that period and the likely responsiveness of the person to them. One should be extremely cautious if this educative process is attempted. A danger is that the accused will require the word formulae which suggests comprehension of the court process, without in fact acquiring a working understanding of the concepts involved.

83. In R v Monaghan, the same issue arose and some evidence was given that suggested there would be a relevant improvement in Mr Monaghan's condition. His IQ had increased from 59 to 77 and the only expert who directly addressed the issue, suggested that it was "likely that within the next five years he may move" to where he can "reliably plead without substantial support and time".

84. Here, however, Dr George gave express evidence that there had been no change between his examination in 2008 and 2010. He did refer to his wish preferably to have another neuropsychological report. The 2006 Neuropsychological Report, however, was consistent with his clinical observations. He also noted, as referred to above (at [25]), that any change is likely to be reflected in no more than 5 points difference in IQ which would still place Mr Fisher at a borderline level. He noted that Mr Fisher's intellectual difficulties have been present from birth. He did also note that on each occasion he saw Mr Fisher (including 2009, though not then for a fitness to plead assessment) he presented very similarly.

85. Dr George further said in evidence that Mr Fisher's ability would have been affected by the four years since the neurological assessment by his abuse of drugs and his epilepsy which may have led to some organic brain damage. These changes, however, would be further debilitating rather than enhancing his forensic capacities.

86. Dr George summed it up "[f]rom a clinical viewpoint, I don't think he's changed very much over time".

87. In these circumstances and on that evidence, I am satisfied that I can find that Mr Fisher will not become fit to plead within twelve months.

88. Accordingly, I find that Dennis Fisher is unfit to plead and that he is not likely to become fit to plead in the next 12 months.

89. A special hearing under s 316 of the Crimes Act must, accordingly, be held: s 315 of the Crimes Act.

90. I shall give appropriate directions for such a hearing

I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the prosecution: ACT Director of Public Prosecutions

Solicitor for the accused: Craig Lynch & Associates