R v Gall

District Court of NSW|2024-06-19

Introduction

David Gall was committed to the District Court of New South Wales for the following offences certified in the Local Court on 6 December 2023: Sequence H93285414/3 On 19 May 2023, at Bourbah in the State of New South Wales, did drive a motor vehicle, namely, Holden YKZxxx, whilst under the influence of intoxicating liquor, whereby the vehicle was involved in an impact as a result of which the death of Paul Kelly was occasioned, and where the prescribed concentration of alcohol was present in his blood. S 52A(2) Crimes Act 1900 Law part code 159 Sequence H93285414/1 (in the alternative to the above) On 19 May 2023, at Bourbah in the State of New South Wales, did drive a motor vehicle, namely, Holden YKZxxx, in a manner dangerous to another person or persons, whereby the vehicle was involved in an impact as a result of which the death of Paul Kelly was occasioned. S 52A(1)(c) Crimes Act 1900 Law part code 140
Also certified for the District Court presented pursuant to s 166 Criminal Procedure Act 1986 is the following back up offence: Sequence H93285414/2 On 19 May 2023, at Bourbah in the State of New South Wales, did negligently drive a motor vehicle, namely, Holden YKZxxx, upon a road, namely, Gulargambone Road, and the said driving occasioned the death of Paul Kelly. S 117(1)(a) Road Transport Act 2013 Law part code 79217
The accused was not arraigned and I was not provided with a form of the indictment proposed. On 25 July 2024 when I announced my decision that I found the accused fit for trial the Crown advised that a bill was found in terms of the charges certified pursuant to s 66(1) Criminal Procedure Act 1986.
It is uncontroversial that the question of fitness may be raised when it was in the prosecution sequence and that there was no need for the accused to be arraigned before the question is considered and determined.
It is also uncontroversial that the question of fitness was raised in good faith.

The Crown Case

The Crown case statement sets out the events from which the charges arise. I have omitted references to the primary documents in which the representations supporting the asserted facts are found.
The accused is aged 63 years and weighed 60-70 kilograms at the material time. He lived in Warren and held a P2 provisional licence.
The deceased was aged age 52 years, was married, and lived with his wife and three children on their farm in Bourbah. He was a sheep classer and worked part time on the farm with cattle and crops.
On 19 May 2023, before the crash, the deceased worked early on the property and returned home about 10:00am for a Zoom call. The call lasted until about 11:30am, after which the deceased with his wife went to another property to collect two trucks, which they drove home in time for lunch. En route, they noticed that some cattle had jumped over a gate. About 3:00pm he left home to secure the cattle. His wife was on a call at the time, which lasted about 1 hour and 20 minutes.
The deceased drove a Quadbike. It had no seatbelt.
In the meantime, the accused drove along Gulargambone Road towards Quambone. He was alone, but he had two border collie dogs in the back seat. He commenced his drive in Warren. He drove a white Holden Rodeo utility fitted with a bull bar.
At 2:22pm, the accused stopped at the Collie Hotel on the Oxley Highway where he was captured on CCTV consuming a schooner of beer. He left there at 2:41pm travelling north. About 3:40pm, he drove past West Point Road, passing a bus travelling in the opposite direction. The bus driver noticed nothing unusual about his manner of driving.
The accused was heavily intoxicated and his driving ability was substantially impaired as a result.
The accused continued driving west towards Quambone, along an unsealed road past rural/farm properties. The speed limit was 100 kilometres per hour. The speed of his vehicle is unknown, but there is evidence that it was in excess of that speed limit.
His approach to the crash site included a very slight right-hand bend in the road and then a straight stretch toward it. The road facilitates travel in both directions. At the place of the crash, it is 4.5 metres wide. The road is bordered by grass and gravel. The weather was fine and the road dry. The deceased was also travelling west on the Quadbike.
About 3:45pm, the accused collided with the rear of the Quadbike approximately in the middle of the road. Road scars were left. The accused's attention was distracted from the roadway for a couple of seconds as he sought a cigarette in the centre console. He did not notice the quadbike until hearing the sound of the collision.
The deceased was ejected and fell onto the road 24.8 metres north west from the point of collision. The Quadbike came to rest on the southern side of the road, leaning vertically against a tree.
The accused stopped 59 metres away from the point of impact. He observed the deceased laying on the ground. He returned to his vehicle and continued driving west, looking for a property where he would request assistance.
The accused's blood alcohol concentration was calculated to have been within the range of 0.220 to 0.283 grams per 100 millilitres of blood, with the most likely level about 0.241 grams per 100 millilitres of blood.. He had not consumed a full meal since the afternoon of the day before.
Expert opinion is that the death occasioned by the impact was attributable to the fact the accused was under the influence of alcohol, given the accused's tunnel vision pertaining to his search for the cigarette and his impaired visual scanning ability.
The Crown contends that the accused's intoxication affected his assessment of risk when taking his eyes off the road without checking sufficiently for any dangers ahead of him.
About 3:55pm, the accused quicky drove down the driveway of a property nearby off Gulargambone Road. He parked near a shed and alighted.
Jarryd Rae was in the shed at the time and walked over to the accused. He said, "Can I help you? Are you right?" The accused said, "Can you help me, I've hit a man on a bike." Mr Rae said, "Where is he?" The accused said, "He's laying on the road?" Mr Rae said, "Where abouts?" The accused said, "On the road, about 10 kilometres up the road?"
Mr Rae drove alone to the crash site. His father Stephen was also in the shed. He walked over to the accused. The accused was not stable on his feet. The accused said, "I've hit a man on a motorbike. He was just there, and now he is laying on the road and there is no movement." He had slurred speech and unsteady eyes. This witness told the accused to follow him into the house. The accused drove behind and when they reached the house, this witness invited the accused inside. The accused grabbed a can of XXXX gold beer from the back tray of the utility. Stephen Rae said to him, "You don't need that beer, sit it in the back of the ute." The accused replied, "I need it."
The accused followed Mr Rae inside the house, moments behind him, and sat at the end of a bench. Mr Rae introduced his wife Tracey. and offered the accused a cup of coffee. He said, "No", opened the can of beer, and started drinking from it.
Stephen Rae phoned Jarryd's mobile but there was no answer. He left to find the crash scene.
Mrs Rae asked the accused if he was okay. The accused replied, "He just came out and why would he do that; why didn't he hear me coming". He repeated these comments, slurring.
Mrs Rae took the accused from the house. At the stairs he stood, looked at them, but refused Mrs Rae's offer for help, and instead walked down very slowly, swaying at each step trying to balance. He walked toward his car, unable to keep a straight line, and there collected another XXXX gold can, sat on a step nearby, and started drinking from it.
The accused asked Mrs Rae, "Can I have a light?" She replied, "I don't smoke sorry. Where did you come from? He said, "Warren." She asked, "Where were you going?" He replied, "Quambone." She asked, "Do you know anyone there?" He replied, "I have friends at a mission there." He said he wanted to go home and to himself, "This is the worst decision I have ever made."
Mrs Rae received a call from Stephen, who told her Paul Kelly had been hit and had died. There were periods of silence as Mrs Rae waited for the Police, during which the accused said, "Am I waiting for the police?" She responded, "Yes we are, this is serious, you'll need to speak to the police." He said, "I wanna go home, they can see me tomorrow." He became agitated. He rose and walked around, leaving the two XXXX gold cans empty on the step. He went for another can and started to open it but Mrs Rae took it from him and returned it to the vehicle, saying he did not need it. He grabbed another can from the back of the vehicle and went to open it. Mrs Rae told him that he was not having any more to drink. She took that from him and returned it. She told him, sternly, he was not going anywhere and was not to have anything else to drink until police arrived.
Mrs Rae saw a neighbour, Josie Jose, drive by. She called him over and asked him to join her so the accused would know she was not alone.
The accused repeated he wanted to go home. He asked for a smoke. Mrs Rae provided a box of matches and he lit a cigarette.
Mrs Rae and Mr. Jose spoke and agreed they must make sure the accused did not leave and would take his keys. Shortly afterwards, Mr. Jose had to leave because of cattle out on the road. Mrs Rae took the accused's keys from the ignition and put them in her pocket. The accused repeated that he wanted to go home and that police could see him tomorrow. Mrs Rae told him she had his keys and he was not going anywhere until he spoke to police. He said, "Give me my fucking keys and I will run over the lot of you." She replied, "Well you're definitely not getting the keys back."
The accused sat in the driver's seat. She watched him until Police arrived.
Jarryd Rae found the deceased in the middle of the road, on his left side with his face towards the ground. He checked for a pulse and reflexes but detected none. He had not taken his mobile, and so drove to the property of Annette and Paul Fisher to have them call "000". He arrived there after 4:00pm, asked Mrs Fisher to call "000", and said there had been a road accident from which Paul Kelly was gone and ambulance and police were needed.
At 4:18pm, Mrs Fisher contacted her husband Paul and told him of the collision and that Paul Kelly was dead, and at 4:25pm phoned "000" and reported the event.
Jarryd Rae returned to the crash scene in the meantime. Shortly thereafter, Stephen Rae arrived and saw the deceased lying on the road, face down. He believed him to have died. He blocked the road with his car and called "000" and with Jarryd waited for emergency services, and with others took steps to protect the deceased and the scene.
The deceased's wife completed her phone call and went to collect road signs to warn of the presence of the cattle to be moved the next day. She saw the red and blue lights of emergency vehicles, and returned to her property where Paul Fisher told her of her husband's death. He drove her to the crash site where she saw the deceased. She stayed until about 7:00m when she returned home to call her daughter, but then returned about half an hour later to the crash site and stayed with her husband until Police arrived. Thereafter she moved out of the way and watched on until the deceased was taken away.
At 5:01pm, paramedics arrived. They rolled the deceased from the prone position onto his back, checked for signs of life, and verified he was deceased.
The deceased had suffered numerous superficial blunt force injuries, predominantly to his head and torso, and a haemorrhage.
Police arrived with the paramedics. Jarryd Rae told them where the accused was, that his mother had taken the accused's car keys because he was attempting to leave, and returned to the property with two police while another took control of the scene and arranged for specialist crash investigators to attend with State Emergency Services to illuminate the roadway.
Shortly after 5:45pm, Police attended the property where Mrs Rae told them that the accused had consumed two XXXX gold cans since arriving there.
The accused remained sitting in the driver's seat of the utility, asleep. He eventually awoke and opened the driver's door, releasing the smell of alcohol from him and the car. His eyes were glossy and slightly bloodshot. There was a can of XXXX gold in the front passenger footwell. A roadside breath test yielded a reading of 0.274. Police arrested him and took him to Coonamble Multi-Purpose Services for mandatory blood and urine samples. They arrived there about 6:45pm, but nurses were unable to draw enough blood for a sample from 7:00pm until about 7:50pm when they were successful. He provided a urine sample. Police took him to Coonamble Police Station and on to Dubbo Police Station.
About 8:30pm, the Crash Investigation Unit arrived at the scene. About 12:30am, the accused's vehicle was towed away. The quad bike was also collected. About 4:00am, the accused took part in an ERISP and representing the following: 1. He left from Warren; "I wasn't really going [driving] anywhere to tell you the truth … I just went for a lap down the backroads". 2. Two border collie dogs were in the back seat. 3. "I looked down and went to get a cigarette and I looked up, I ah, you know just heard a bang." 4. The cigarette was in the centre console. 5. "I just went for a drive today [yesterday] and yeah … Gave me something to do." 6. He had been driving for "probably an hour or two", or left home at "12, 1 o'clock I s'pose". 7. "I pulled up at a property when I ah, when I found out I ran over a bloke". 8. "I don't know where he'd come from. He wasn't there you know, 'cause it was a straight road." 9. "I gave him a bit of a shake and nothing happened." 10. He did not call "000" on his mobile because he "can't use it". 11. The road was in a good, dry condition. The sun was not adversely affecting his vision, and visibility was clear. 12. The mechanical condition of the car was good. 13. He was previously disqualified for "drunken driving and all that sort of stuff" and that this was "nothing serious". 14. Upon whether he had consumed alcohol prior to the crash, he said "No, I don't think so."
On 24 May 2023 Police further inspected the Quadbike and the Holden Rodeo in the holding yard. On 8 June, the Engineering Investigation Section examined the Holden Rodeo. The examination revealed no mechanical defect or component failure which may have contributed to the collision occurring.

The Accused's Fitness

These proceedings are pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 which in Part 4 provides for the determination of a person's fitness for trial. It is uncontroversial that Part 4 applies to these proceedings.
Part 4 includes the following provisions relevant to the determination of this question S 36 articulates the fitness test: S 36 Fitness Test (1) For the purposes of proceedings to which this Part applies, a person is taken to be unfit to be tried for an offence if the person, because the person has a mental health impairment or cognitive impairment, or both, or for another reason, cannot do one or more of the following - (a) understand the offence the subject of the proceedings, (b) plead to the charge, (c) exercise the right to challenge jurors, (d) understand generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged, (e) follow the course of the proceedings so as to understand what is going on in a general sense, (f) understand the substantial effect of any evidence given against the person, (g) make a defence or answer to the charge, (h) instruct the person's legal representative so as to mount a defence and provide the person's version of the facts to that legal representative and to the court if necessary, (i) decide what defence the person will rely on and make that decision known to the person's legal representative and the court. (2) This section does not limit the grounds on which a court may consider a person to be unfit to be tried for an offence. S 37 When question of unfitness may be raised (1) The question of a defendant's unfitness to be tried for an offence is, so far as practicable, to be raised before the defendant is arraigned on a charge in respect of the offence but may be raised at any time during the course of the hearing of the proceedings in respect of the offence. (2) The question of a defendant's unfitness to be tried for an offence may be raised on more than one occasion in the same proceedings. S 38 Question of unfitness to be determined on balance of probabilities The question of a defendant's unfitness to be tried for an offence is to be determined on the balance of probabilities. S 39 Court and other persons may raise question of unfitness The court, the defendant or the prosecutor may raise the question of a defendant's unfitness to be tried for an offence. S 44 Inquiry procedures (1) The question of a defendant's unfitness to be tried for an offence is to be determined by the judge alone. (2) At an inquiry, the defendant is to be represented by an Australian legal practitioner, unless the court otherwise allows. (3) An inquiry is not to be conducted in an adversarial manner. (4) The onus of proof of the question of a defendant's unfitness to be tried for an offence does not rest on any particular party to the proceedings. (5) In addition to any other matter the court may consider in determining whether the defendant is unfit to be tried for an offence, the court is to consider the following - (a) whether the trial process can be modified, or assistance provided, to facilitate the defendant's understanding and effective participation in the trial, (b) the likely length and complexity of the trial, (c) whether the defendant is represented by an Australian legal practitioner, or can obtain representation by an Australian legal practitioner. (6) A determination by the judge must include the principles of law applied by the judge and the findings of fact on which the judge relied.
Mental Health Impairment and Cognitive Impairment are defined: S 4 Mental health impairment (1) For the purposes of this Act, a "person has a mental health impairment" if - (a) the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and (b) the disturbance would be regarded as significant for clinical diagnostic purposes, and (c) the disturbance impairs the emotional wellbeing, judgment or behaviour of the person. (2) A mental health impairment may arise from any of the following disorders but may also arise for other reasons - (a) an anxiety disorder, (b) an affective disorder, including clinical depression and bipolar disorder, (c) a psychotic disorder, (d) a substance induced mental disorder that is not temporary. (3) A person does not have a mental health impairment for the purposes of this Act if the person's impairment is caused solely by - (a) the temporary effect of ingesting a substance, or (b) a substance use disorder. S 5 Cognitive impairment (1) For the purposes of this Act, a "person has a cognitive impairment" if - (a) the person has an ongoing impairment in adaptive functioning, and (b) the person has an ongoing impairment in comprehension, reason, judgment, learning or memory, and (c) the impairments result from damage to or dysfunction, developmental delay or deterioration of the person's brain or mind that may arise from a condition set out in subsection (2) or for other reasons. (2) A cognitive impairment may arise from any of the following conditions but may also arise for other reasons - (a) intellectual disability, (b) borderline intellectual functioning, (c) dementia, (d) an acquired brain injury, (e) drug or alcohol related brain damage, including foetal alcohol spectrum disorder, (f) autism spectrum disorder.
The scope of the matters which might render a person unfit for trial are not limited to those which are specifically included in these definitions. S 36(1) of the Act provides that a person is taken to be unfit to be tried because the person cannot do one more of the things set forth in the paragraphs incorporated in s 36(1) because they have a mental health impairment, or a cognitive impairment, or both, or, cannot do so for another reason.
The provision embraces and builds upon the principles found in Kesavarajah v The Queen [1994] HCA 41 approving the judgement of Smith J in Reg. v. Presser (3) (1958) VR 45. These authorities remain relevant to the assessment of a person's fitness.
The essence of the asserted unfitness is the accused's deterioration from alcohol abuse. Two neuropsychologists assessed the accused for his fitness to participate in these proceedings, one qualified on behalf of the accused and the other on behalf of the Director of Public Prosecutions. Each provided reports, and before the court gave evidence concurrently, each addressed in turn by counsel upon the issues identified by the parties.
The parties accept the skill, training, and professional experiences of these witnesses.

Dr Sally McSwiggan

Dr Sally McSwiggan was retained on behalf of the accused.

First Report 24 November 2023

On 24 November 2023 she wrote her first neuropsychological report to the accused's solicitor sought from her upon concerns from interactions with the accused about his ability to properly comprehend and retain advice given in relation to the appropriate plea and for the conduct of a trial should the accused plead not guilty. Specifically, she was asked to address: 1. Whether the accused suffers from any mental health or cognitive impairments; 2. Whether those impairments, if present, affect his ability to provide instructions sufficient to conduct criminal proceedings; 3. Whether those impairments, if present, effect his ability to follow proceedings in the criminal jurisdiction; and 4. Whether those impairments, if present, require accommodations to be made in order to assist him in providing instructions and follow the proceedings
Dr. McSwiggan was provided with: 1. A facts sheet; 2. A custody management record; 3. A transcript of the accused's interview; and 4. A statement of Constable Loughland with a transcript of the accused's interaction with police
She assessed the accused over 60 minutes by AVL on 31 October 2023 when he was supported by a friend who did not contribute to the process. The friend provided what was said to be a separate informant view by telephone over about 20 minutes on 23 November 2023
Dr McSwiggan explained to the accused: 1. The nature and purpose of the evaluation for her to prepare a neuropsychological report based on the assessment; 2. The limits of confidentiality; 3. Any information provided would not be confidential and could be made available to a wider public if tendered in court; and 4. Her role as an independent expert.
He seemed to have some understanding of the explanation and consented to continue. She does not further qualify her assessment of his perception of her representations but there is no indication that she had any concerns that the accused did not understand her.
Her extensive qualification and experience were provided. There is no challenge to these nor any submission that she is not qualified to offer her expert opinion.
Dr McSwiggan acknowledged inherent limitations in any cross-sectional neuropsychological evaluation. Her opinions to an extent are based on a cross-sectional assessment of the accused, including the aforementioned primary documents.
She summarised the demographic information: 1. The accused was a 64-year-old single Indigenous man; 2. He has lived alone renting in the same residence for the last 10 years. 3. His income is from Centrelink. 4. He is one of 12 siblings, was raised in Warren, while they were raised in Bourke, Wilcannia, and Broken Hill. 5. He was educated to the end of Year 8 and was literate. He read newspapers comparable the Daily Telegraph. 6. He never married and has no children. 7. He worked until his mid-50's in Warren as a drover, driving heavy machinery, and farmhand. 8. He seemed less sure what he ate for dinner the night before ("cornflakes I think") compared to his recall of his early history. He knew his rent was direct debited and he paid bills for such as electricity at the post office. 9. He described his health as good, denied regular medication until this event, he was prescribed a nightly sedative by the Flying Doctor Service to assist with insomnia. He denied having a regular doctor over his lifetime, or hospitalisation. He could not recall any remarkable medical events beyond a "few fights" during his youth. 10. He denied psychiatric hospitalisations or treatment or contact with community mental health services. 11. He admitted a history of hazardous alcohol use with "quite a bit of prompting". He could not (or would not) estimate amounts at first. He admitted to beer and wine use over spirits and could consume a case of beer or 5 litres of moselle over 2 days as standard. He consumed alcohol most days. He gave various accounts of recently ceasing, from 3 months to 6 months ago. 12. He gave the impression of minimising his alcohol use. 13. He denied illicit substance use; he is a long-term tobacco smoker. 14. The accused has a previous forensic history according to his recollection, but this is not further explained.
Upon mental state examination Dr McSwiggan wrote that the accused presented as an older male, casually dressed, reasonably groomed, who exhibited mostly reasonable eye contact, appeared cooperative, and engaged. Conversational speech was mildly slowed in rate and mostly normal in tone and volume. At times there was underlying irritability but he was generally pleasant. He showed limited spontaneous speech, his quantity of speech was generally impoverished. At times he derailed from topic when unable to respond to direct questions. He tended not to admit when he could not provide an answer. He denied a history of delusions, hallucinations, or suicidal thoughts. Objectively he did not appear especially depressed. His outward expression of emotions appeared mildly blunted. Overall he did not present with symptoms consistent with a Major Mental Illness such as severe disturbance of mood or florid psychosis.
Dr McSwiggan performed neuropsychological assessment. by way of the. Wechsler Adult Intelligence Scale-Fourth Edition (WAIS-IV) selected subtests, Wechsler Memory Scales (WMS- IV) selected subtests, Montreal Cognitive Assessment (MOCA). He engaged adequately over the course of the cognitive assessment conducted in one interval. He appeared to be putting forth effort on all measures.
The cognitive testing battery for older persons is flexible and targeted towards evaluating specific (cognitive) domains where neurocognitive or neurodegenerative impairments often manifest.
His premorbid function was estimated on occupational attainment at least in the Borderline to Low Average range (>10th percentile of the population) given his history of employment and tenancy. He was oriented to time and place, could spontaneously recall the Australian PM, could recall a war overseas but not the specifics beyond "Arabians and the others".
Measures of attention, concentration, and holding information in mind while manipulating it were variable. His basic attention was mildly reduced. His capacity to manipulate information (working memory) was poor. He could not reverse more than three digits held in mind.
His performance on executive functioning tasks was reduced. He could not sustain generating simple ideas under timed conditions. His abstract reasoning was reduced by concrete thinking, unable to evaluate similarities between common items, arguing the differences despite being directed to consider only how they were alike.
Upon assessment of recent memory, which reflects the ability to learn and retain new information, his Immediate Auditory Memory and ability to encode beyond his basic attention span was impaired, able to encode very limited information, in the Extremely Low range (0.1%). After a delay with distractions (20 minutes), he could not recall or recognise the (limited) information.
The accused's companion, Ross Marks, in a separate interview on a later occasion provided the following: 1. He knew the accused from 10 years of age, with contact for around the last 40 years, the accused remaining a friend of his family. 2. He agreed the accused would fit the term 'a severe alcoholic' since he has known him. He described the accused's drinking tolerance as "week long benders" each month for the last 40 years. It was at a level where the accused would be inebriated for days without break, drinking on waking, sleeping in a chair, and not eating. There was no evidence of fresh food bought or prepared by the accused beyond a loaf of bread in the kitchen. 3. Mr Marks commented upon changes in the accused: 1. "He doesn't seem to get it anymore; I keep thinking why is he like that"; 2. He was less tolerant, less caring, and more irritable than he was, e.g. he described the accused ripping up a form and leaving a medical appointment abruptly recently, unable to tolerate frustration.
Dr. McSwiggan diagnosed the accused against the DSM 5: 1. A 64-year-old man who presented on cognitive testing with mildly reduced basic attention and disruption of working memory. 2. Immediate recall of information was impacted, reducing his capacity to encode new information beyond his basic attention level to learn it for later recall. 3. Memory skills were not fatally disturbed, he was not amnestic where there is rapid (30 minutes) and complete forgetting of new information, as with Alzheimer's dementia. 4. Measures encompassing higher order thinking (e.g. problem solving and cognitive flexibility) showed he was inflexible and concrete when trying to find solutions to fairly low-level problems. 5. His pattern of cognitive loss with a history of hazardous and sustained alcohol use would be characterized as a Minor Neurocognitive Disorder due to (probable) Alcohol Related Dementia. The deficits are limited to a single cognitive domain and appear to not substantially impact on his independent living skills. 6. Dr. McSwiggan acknowledged that this "probable" diagnosis was without the benefit of medical investigations or a CT brain scan to show levels of brain atrophy (shrinkage). This notwithstanding, the accused's confirmed history of sustained and hazardous overuse of Alcohol included no partner to ensure adequate nutrition over his adult years. 7. Dr McSwiggan referred to two main types of Alcohol Related Dementia: 1. Severe - (Wernicke-Korsakoff's Dementia; WKD) caused by Thiamine depletion from malnutrition and alcohol's disruptive effects on brain metabolism, the key feature being an irreversible profound inability to store new memories compared to relatively intact intellect. The striking memory loss for recent events may lead to confabulation, where older events are used as current memories, making communication illogical at times. 2. The less severe Alcohol Related Cognitive Impairment (ARCI) might have prominent executive deficits in planning, cognitive flexibility, and reasoning (similar to Moderate to Severe Vascular Dementia) but less likely the complete dense loss of recent memory. Memory can be unreliable and inefficient (patchy) but not the dense amnesia of the severe type where the person would neither recall nor recognise episodic information (such as an entire day), even with explicit reminding. Classified as a Severe Substance Use Induced Minor Neurocognitive Disorder by DSM 5, symptoms of ARCI can remit to a degree with abstinence and treatment (Thiamine/ Nutrition) in contrast to the permanence of WKD, a Major Neurocognitive Disorder.
Upon the features consistent with executive deficits on a background of severe alcohol overuse for decades, the reliability of which depends upon accepting the representations by the accused and his companion, Dr McSwiggan is of the opinion that the accused would meet the DSM 5 criteria for Severe Substance Use Induced Persistent Minor Neurocognitive Disorder.
Her use of the term "Minor" does not indicate minor impact. Major in this context would mean the severe type (Wernicke-Korsakoff's Dementia) where a person is more likely than not become incapable of caring for themselves safely and properly in the community, probably requiring substantial support and would benefit from accommodation in a residential facility.
The accused, an older Indigenous man, presented to Dr McSwiggan with no medical history. Dr McSwiggan suggested that it could be speculated that the accused's presentation could be, in part, also related to untreated chronic vascular diseases (query Hypertension, query raised Cholesterol, query Diabetes) that may have impacted on the small vessels of his brain over time. This would contribute to the cognitive deficits seen in a Mild Alcohol Related Dementia as both conditions are quite static and encompass mainly executive functions while other cognitive domains remain relatively intact. She referred to studies to support this speculation and noted the content of the fact sheet (not further described) and the custody management record of 19 May 2023 from 8.20pm wherein it was recorded that the accused was considered to be inebriated.
There is no evidence that this speculation was investigated.
Dr McSwiggan noted the transcript of his interview conducted at 4:00am the next morning. She at this stage had not seen the electronic version. She noted the statement of Constable Loughland with a transcript of the accused's interaction with police, and the reading from a road side alcohol breath test.
Dr McSwiggan referred to s.36 Mental Health and Cognitive Impairment Forensic Provisions Act, and the criteria for a person taken to be unfit to be tried for an offence because of mental health impairment or cognitive impairment, or both, or for another reason, if they cannot do one or more of the following; 1. understand the offence the subject of the proceedings, 2. plead to the charge, 3. exercise the right to challenge jurors, 4. understand generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged, 5. follow the course of the proceedings so as to understand what is going on in a general sense, 6. understand the substantial effect of any evidence given against the person, 7. make a defence or answer to the charge, 8. instruct the person's legal representative so as to mount a defence and provide the person's version of the facts to that legal representative and to the court, if necessary, 9. decide what defence the person will rely on and make that decision known to the person's legal representative and the court.
She noted additional considerations set out in section 44(5) of the Act: 1. In addition to any other matter the court may consider in determining whether the defendant is unfit to be tried for an offence, the court is to consider the following - 1. whether the trial process can be modified, or assistance provided, to facilitate the defendant's understanding and effective participation in the trial, 2. the likely length and complexity of the trial, 3. whether the defendant is represented by an Australian legal practitioner or can obtain representation by an Australian legal practitioner.
Dr McSwiggan wrote that when the accused was directed to the proceedings: 1. He was aware his charge was "driving causing death" around 6 months ago; 2. He agreed he had been to court before; 3. He recalled he had discussed his case with his lawyer and had made no decisions; 4. He was of the view his lawyer would run the matter; 5. He did not feel able to provide instructions beyond "not guilty"; 6. He understood the pleas available and their definitions; 7. He had some understanding of a trial and its purpose, to determine whether or not he was guilty; 8. He spontaneously said he was aware there would be witnesses and a judge; 9. He was aware of the role and purpose of the judge, his lawyer, and the prosecution; 10. He was not aware that his lawyer could only act on instructions, and could not run the matter based on what the lawyer thinks would be in his best interests; 11. He understood a jury was made up of "6 or 8" people that have a role in decisions about guilt; 12. He could not express a view about jury challenges after the concept was explained; 13. He could not consider or reason about potential bias associated with his matter; 14. He was unable to provide specific examples of evidence despite having some understanding of the concept; 15. He understood the evidence in his matter was "what happened"; 16. In response to specific questions about the type of evidence used from car accidents he described his recall of the events.; 17. After priming him about his car and the bike of the deceased, further questioning about what evidence the prosecution might rely on to prove their case did not elicit any more information from him and he repeated his version of the facts; 18. He agreed the police have photographs of the scene, his car, and the bike; 19. He was unable to reason why there were photographs of the deceased's bike in his documents; 20. He agreed the bike photographs were evidence but did not know why or how this could be used for or against him in his matter; 21. He agreed he underwent blood tests and did not believe there was any evidence against him based on the results; 22. His version was highly inconsistent with the statement of the attending officer.
The opinion given in the report is that the accused at the time of the evaluations, on balance, could not satisfy the minimum criteria specified in the Act and accordingly could be considered as unfit, and, having regard to Section 44(5) of the Act, there is no way to modify or assist him to facilitate his understanding and effective participation in a complex legal proceeding.
The reasons for the opinion are: 1. Cognitive impairment provides an explanation for the accused's unfitness; 2. His presentation and scores on cognitive measures showed he performed in the range of impairment for executive skills, consistent with a Minor Neurocognitive Disorder due to (probable) Alcohol Related Dementia; 3. His capacity to enter a sensible plea, make an able defence or answer to the charge will be limited by his impoverished account and inconsistencies around alcohol consumption evidence; 4. He failed to demonstrate he could appreciate the likely substantial effect of the evidence against him; 5. He remained unaware of how any evidence may be used for or against him; 6. He could provide his version of the facts to a legal representative and to the court if necessary but would be limited to a few sentences and not consistent with the facts; 7. Should he continue to fail to recall or accept the evidence around the charge and not be able to explain its impact, he would be incapable of sensibly reasoning about his plea decision; 8. He would take a passive approach towards instructing a legal representative, wishing his lawyer to take over and help him to mount a defence; 9. He would not be capable of properly following the course of a trial proceeding with any level of complexity so as to understand what is going on given his limited capacity to encode new information; 10. A support person could assist him in simple proceedings but this matter is likely too complex for 'support' to overcome his deficits.
In response to specific questions posed to Dr McSwiggan she wrote of the accused: 1. He suffers Severe Substance Use Induced Minor Neurocognitive Disorder and will have problems reasoning when presented with decisions due to his executive deficits impacting on his capacity to thinking flexibly, appreciate and properly recall his own situation and sensibly weigh information when making choices. The consistency of his decisions could also be variable, prone to concrete thinking, he may default to 'best outcome' rather than maintain a decision he cannot properly reason about and hence tolerate. 2. He will be a 'passive' participant given he will more likely than not fail to encode sufficient education and advice given the complexity of the proposed trial matter in order to grasp the important elements. In addition, this will manifest as a limited capacity to provide instructions sufficient for a trial with some complexity. 3. There has likely been a period of attempting to educate the accused about his matter and the elements; he appeared to fail to accept some evidence which seemed cannot be overcome with repetition; he appeared to be basing his legal decisions without the capacity to appreciate his circumstances in relation to this matter given the available evidence.

Supplementary Report by Dr Sally McSwiggan 6 January 2024

Upon the request of the accused's solicitor Dr. McSwiggan provided a supplementary report on 6 January 2024, also included in the tender bundle, to be read in conjunction with the report of 24 November 2024.
This report was sought upon the disclosure of evidence of the accused's blood alcohol concentration about the material time, not available until after her assessment of the accused. Dr McSwiggan reviewed the report of Mr Alen Lin, Pharmacologist, the NSW Police Force Impaired Driver Research Unit dated 15 September 2023.
Dr. McSwiggan interviewed the accused once again for this report via AVL on 16 January 2024 for 20 minutes, during which he was supported by Mr Marks who attended on the earlier occasion but who did not contribute to the process.
Dr. McSwiggan repeated the caveat given in her first report that there are inherent limitations in any cross-sectional neuropsychological evaluation, and that her opinions are to an extent based on a cross-sectional assessment of the accused. From Mr. Lin's report Dr. McSwiggan noted: 1. The accused's blood alcohol concentration was recorded as 0.225 grams per 100 millilitres of blood at 7.59 pm, after the collision at 3.45pm, leaving the impression was his driving ability at the time of the collision would have been "very substantially impaired". 2. This as I understand the evidence is Mr Lin's opinion rather than an impression. 3. The material tendered in the hearing did not include the report from Mr. Lin or the specification of the blood alcohol level upon analysis of the sample taken at 7:59pm. The Crown Case Statement specified a reading of 0.274, which I understand to be a reading of grams of alcohol per100 millilitres of blood, and that the blood sample was not taken at 7:50pm. The Crown Case Statement does not specify the result of the analysis of that sample. The time difference between 7:59pm offered by Dr. McSwiggan and 7:50pm in the Crown Case Statement might be the result of one or other of the authors striking the wrong key. 4. Referring once more s.36 and s 44(5), Mental Health and Cognitive Impairment Forensic Provisions Act, Dr. McSwiggan attributed to the accused that he no recall of his lawyer having told him about the blood alcohol concentration evidence. 5. Dr. McSwiggan described the results to him and compared the extent to which his blood alcohol concentration was over the "legal driving limit" to aid understanding, but in response to questions about the evidence, he "repeatedly" reported that he did not drink to excess before the accident and his blood alcohol results were from his consumption of "a few drinks after". When pressed with the proposition that the number of drinks he described would not fit with the blood alcohol concentration, the accused said the evidence was wrong and he did not accept it. Despite "multiple attempts" he would not shift his view and maintained the drinks he consumed post-accident and shaking, shock caused his raised blood alcohol level. 6. The accused said he was still planning on pleading not guilty for he does not accept that the blood alcohol concentration evidence would substantially impact upon his defence and he was not intoxicated at the material time.
Upon this material harvested in the 20-minute consultation, Dr. McSwiggan offered her opinion: 1. At the time of the evaluation, on balance, the accused still could not satisfy the minimum criteria and accordingly could be considered as unfit, and having regard to Section 44(5) of the Act, based on the evaluation, there is no way to modify or assist Mr Gall to facilitate his understanding and effective participation in a complex legal proceeding. 2. Her reasons for her opinion are: 1. His capacity to enter a sensible plea, make an able defence or answer to the charge will be severely limited by his lack of insight around the alcohol consumption evidence. 2. He fails to demonstrate appreciation of the likely substantial effect of the evidence against him, lacks awareness of how this evidence will be used against him in a trial, and does not accept he could be wrong about this, demonstrating concrete thinking, that borders on the irrational, consistent with the cognitive impairment induced by his severe alcohol misuse disorder. 3. The accused's cognitive impairment is more likely than not permanent. 4. There is no real likelihood that the accused will become fit in the next 12 months based on the severity of his cognitive impairment, with no real prospect of voluntary remission of alcohol and treatment.
Dr McSwiggan saw the accused for 20-minutes via audiovisual link on 16 January 2024, to further address whether the information regarding his blood alcohol concentration at the material time impacted upon her opinion regarding his fitness. She maintained that the accused was unfit to stand trial on the basis that his ability to enter a sensible plea, make an able defence or answer to the charge, or appreciate the substantial impact of the evidence against him was 'severely limited by his lack of insight around the alcohol consumption evidence.' It was considered that while many individuals with mild neurocognitive disorder related to alcohol do make modest improvements, as he is unlikely to voluntarily cease alcohol and improve his nutritional intake, his deficits are more likely permanent.

Further Supplementary Report by Dr Sally McSwiggan 11 June 2024

Dr McSwiggan provided a third report on 11 June 2024 upon instructions as to: 1. Whether a review of the ERISP video (as opposed to reading the transcript) changes her opinion on the accused's diagnosis and fitness; 2. Her main areas of agreement and disagreement with the report of Ms Barhon
She relied upon the limited consultations conduct prior to her first and second reports.
She reviewed reports of Ms Barhon of 2 April 2024 and 5 June 2024 and the electronic recording of the accused's police interview.
After reiterating her obligations as an expert witness she wrote regarding the ERISP that the accused's appeared blunted and at times inappropriate to the circumstances, presented as superficial, expressing disappointment about his car being a write off, with a smile.
She identified areas of agreement with Ms Barhon: 1. Mr Gall has a diagnosis of Minor Neurocognitive Disorder. The Major variant would be consistent with functional impairment to the degree he would require formal care. Unlike most neurodegenerative disorders, the decline in alcohol related dementia is not progressive or inevitable. It can be a stepwise decline into Korsakoff's Dementia (the Major variant). 2. His irritability, agitation, apathy, and depressed cognitions are the predominant neuropsychiatric consequences of alcohol related brain damage. There was no evidence Mr Gall was deliberately trying to embellish or reduce his effort to avoid legal proceedings.
She identified areas of disagreement quoting the identified passages from Ms Barhon's report and offered comment: "a. [The accused] was able to articulate his reasoning for pleading not guilty, in that he intended to do so as he believed the incident had purely been an unfortunate accident as a result of a momentary lapse in attention to the road by both parties (himself and the deceased)." 1. His version is not an evaluation of his reasoning. 2. Based on decision-making capacity literature 1. Evaluation of reasoning requires enquiry into how the person reached the decision, what elements they considered as having importance, and how did they go about balancing those things. 2. Her evaluation of the accused's reasoning indicated he viewed the evidence as having little to no importance for his case, so he gave it little to no weight when considering his decision. 3. His reasoning was impacted by impaired insight. 4. She cited the article McSwiggan, S., Meares, S., & Porter, M. (2016). Decision-making capacity evaluation in adult guardianship: a systematic review. International Psychogeriatrics, 28(3), 373-384. tendered on the hearing. She continued: "Insight manifests when it is related to something. It cannot be expressed without having something to have insight into. In decision making capacity literature it is often referred to as the 'appreciation' element (choice, understanding, appreciation, reasoning). Self-awareness is the most complex of level of insight. It is a higher-order level of thinking, requiring meta-representations, the ability to consider alternative perspectives and engage in non-pathological self-reflection. Defined as the 'reasonable or realistic perception or appraisal of a given aspect of one's situation, functioning or performance, or of the resulting implications', it can be expressed implicitly or explicitly. Based on my previous evaluation, the accused demonstrated grossly impaired insight in relation to the substantial impact of the evidence as a result of his inability to accept or believe the feedback he was given in order to consider alternative perspectives. In addition to his distorted, pathological capacity for self-reflection, his responses showed a failure to accept or believe the evidence of his blood alcohol concentration and that he "can't be wrong" about this. His denial of the BAC results showed his beliefs surpassed wilful obstinance. Deterioration in insight occurs in numerous neurocognitive and psychiatric conditions (e.g. Schizophrenia, Anorexia Nervosa, Strokes, Moderate to Severe Traumatic Brain Injury, Alzheimer's, Frontotemporal Dementia, Alcohol Related Dementia etc). It also fails to develop in some neurodevelopmental disorders such as Autism Spectrum Disorder and Intellectual Disability. No single neuropsychological test, cognitive domain or psychiatric presentation consistently predicts impaired insight, and there is no single cause. Contributions from organic brain damage (often related to disruptions in frontal regions and limbic system connectivity), psychiatric manifestations (delusions, paranoia, mania, depression, apathy), personality traits, culture, environment, and past experiences correlate to variable degrees. [The accused's] insight has deteriorated as a result of the cognitive and neuropsychiatric impacts of alcohol related brain damage. He fails to realistically appraise the substantial impact of evidence (appreciation) in relation to himself and case. So, he considers the evidence has little to no importance, giving it little weight, if at all, when evaluating his options or inferring how his choice will impact on himself and others (reasoning)." b. "When asked what impact all these bits of information could have, he remarked "a fair bit I'd say…. If they're going against me, can't be good"." 1. This indicated that his evaluation of the substantial impact of the evidence was unrealistic. Based on the facts, the blood alcohol concentration test results, and witness evidence, do, and will, quite clearly go against him. c. His refusal to accept the evidence that he was intoxicated with alcohol (beyond one schooner of beer) at the time of the incident - which would implicate himself as guilty if he did acknowledge this fact - does not equate to an inability to reason. 1. His refusal to accept the evidence, due to the cognitive and neuropsychiatric impacts of alcohol related brain damage rendering his perception of the impact of the evidence and the implications as unrealistic, does result in an inability to properly reason. He dismisses the evidence as an important element when weighing up his choices. d. As previously stated, Mr Gall's refusal to acknowledge further alcohol consumption prior to the incident does not demonstrate a lack of memory or understanding (as appears to have been previously suggested), as it could be equally explained as a rational decision to not implicate himself as guilty when his current intention is to plead not guilty. The accused's firm belief is there is no evidence that implicates him as a result of his impaired insight given his unrealistic appraisal of the evidence, which becomes irrational (mistrust of existence) when his beliefs are challenge. Given the strength of the evidence against him, his 'refusal' would appear to make the likelihood his decision can be explained as balanced, extremely unlikely.
Dr McSwiggan concluded in summary: due to the effects of alcohol related brain damage, the accused lacks the capacity to understand the substantial effect of the evidence that will be given against him, which has more likely than not resulted in the choice of defence he plans to rely on, without comprehending the impact or implications.
It must be that the opinions offered rest upon her acceptance that the representations made by the accused to her were according to his perception accurate and truthful. I am not persuaded that she gave sufficient attention to the accused's representations to assess whether and to what extent they were reliable or self-serving.

Ross Marks

There is no evidence from the accused in the proceedings, but filed and read is the affidavit by Ross Marks of 5 June 2024. He is the accused's friend who supported him when he attended neuropsychological assessment, in which he made no contribution other than to be present. He was not required for cross examination. He states that: 1. He is a long-term friend of the accused from when Mr Marks between the ages of 14 and 16 years moved to live with him. 2. When he was 19 years of age Mr Marks married and lived elsewhere, later to be joined by the accused until he moved to Queensland. The accused later moved back to Warren in New South Wales, and they continued contact. 3. Wherever Mr Mark and his wife lived, the accused would come and stay with them in their home. 4. Regarding a medical history: 1. He knows of no medical diagnoses aware that the accused tends to stay away from doctors. 2. The accused had car accidents when in his twenties and thirties. 3. He does not think the accused was hospitalised. 4. He is aware the accused was assaulted in gaol "a few times" but does not know the severity. 1. Regarding history of alcohol use: 1. The accused has always been a big drinker from when he was in high school including after work. 2. He is a "binge drinker" - drinking alcohol for days and then abstaining for a day or two before beginning again. 3. He frequently went to the river with others in Warren and drink "goons." I accept this to be a usage representing flagons of wine. 4. His consumption of alcoholic drinks could extend to eight litres in a day and the past four years it has increased. He drinks twenty four of thirty days each month. His binge sessions increased to two to three times a month. 5. His diet was inadequate when he was drinking. 6. He lived alone in a one-bedroom flat described as "half clean" to facilitate his lack of memory where his things might be place. He had two dogs which left hair throughout. 1. There were changes: 1. His food intake reduced from 2019. 2. Since 2019 he is more forgetful. He stares blankly without knowing what to do or say and utters "um" frequently. 3. Around summertime last year, which could have been either early or late 1923, which is not made clear, the accused called to say he would come to visit the following day, but when Mr Marks called back the accused had forgotten and was drinking. 4. Twice during the summer last year, which again could have been early or late in 2023, the accused was driving to visit Mr Marks and called on en route to ask where he was. On one occasion he drove to Canowindra, and on the other Cudal. 5. His memory for events in his childhood are disappearing. 6. He loses items around his house. He lost his car keys a number of times. He has forgotten his reporting obligation under his bail, but Mr Marks was able to get him to the police station in time. On occasions a neighbour has reminded him. 7. The accused calls Mr Marks after his conferences with lawyers to ask what he said about the last time he called to discuss what occurred in conference. He reports that he does not understand what the lawyers told him. 8. No matter how many times things are explained, his story remains the same. He appears to remember one line which he repeats. 9. Over the last five years he has shown increasing frustration, anger, and appears to be overwhelmed, such that he cannot be around people. 10. On an occasion after complaining that coffee from a fast-food outlet was too hot, he threw it out the window. I infer this was from a vehicle. 11. There is an example of his anger when he would not accept advice from Mr Marks regarding the replacement of a gasket in a car engine. 12. He is 40% of the person he once was.

Roisin Frances McCarthy

Roisin Frances McCarthy provided an affidavit on 6 June 2024 offering her description of observations made of the accused in her interactions with him as his solicitor retained in the present matter. She has had carriage of the proceedings on behalf of the accused since June 2023.
The Crown did not require her for cross examination.
I do not accept her as an expert witness, notwithstanding that she provides a history of representing clients with cognitive impairments and has in the past raised the issue of fitness. She has no qualifications upon which to draw for an opinion regarding the accused's fitness, however her evidence is admissible as direct evidence of her observations of him when in her presence and when communicating in response to the prosecution evidence she produced to him. The observations might provide a basis for inferences as to the accused's capacity which are implicit in the affidavit: 1. She met with the accused four times; 31 August 2023, 14 September 2023, 31 October 2023, and 16 January 2024. The consultations were from 20 minutes to 60 minutes. Present were another solicitor from the Aboriginal Legal Service and Mr Marks. She has also had a number of telephone conversations with the accused. 2. During the meetings she spoke with him about the brief of evidence and on 31 August 2023 at his request she provided him with a copy of it. 3. During the conference on 14 September 2023, she read to him some of the key parts of the evidence anticipated from civilian witnesses, attending police, and from his electronically recorded interview. She does not describe the specific representations read. 4. The accused was adamant that the evidence read was wrong, contrary to his version of events, maintaining he was not intoxicated at the time of driving the vehicle, he would regularly interrupt repeating his version particularly in relation to how much alcohol he had to drink before and immediately after the collision. 5. He appeared to struggle to appreciate how the evidence was to be used against him and would easily become irritated and frustrated when discussing the evidence. 6. When the Crown served evidence of his blood alcohol level it was brought to his attention, but he maintained his version and did not appear to comprehend how the evidence impacted upon it. 7. Ms McCarthy identified characteristics from which she inferred that he had difficulty with his memory: 1. From early on he had difficulty remembering her. 2. He had difficulty remembering where his matter had reached in the court and when listed the purpose for it. In a telephone contact on 28 August 2023, he asked what the charges were and whether he would be sentenced on the next date. In conference on 14 September 2023, he had trouble reading the brief, forgetting what he had read upon turning to the next page. 3. Following the conference on 14 September 2024 Ms McCarthy arranged for the consultation with Dr McSwiggan. 1. Ms McCarthy offers her impression that the accused's instructions are inconsistent with a complete understanding of the evidence against him. 2. Ms McCarthy offers that the accused would have difficulty participating in the trial process, following the evidence, and providing instructions throughout.

Lucienne Barhon

Lucienne Barhon provided reports upon her assessment of the accused. The first report was countersigned by Dr Susan Pulman, also a neuropsychologist. Both are employed as in the entity styled Dr Susan Pulman & Associates, Forensic Psychologists & Clinical Neuropsychologists.
Ms Barhon's provided her curriculum vitae in a separate document. As with Dr McSwiggan there is no suggestion that she does not have the training, skill, and experience to provide her opinions.

First Report 2 April 2024

The first of her reports was on 2 April 2024 with responses to the opinions offered by Dr McSwiggan's reports on 24 November 2023 and 16 January 2024.
She interviewed the accused in person in Dubbo on 20 February 2024 for a period of three and a half hours, including a 15-minute break. Ross Marks accompanied the accused and was interviewed independently.
She conducted a further interview by audio video link on 27 February 2024, lasting 75 minutes. The accused said that he attended this appointment independently arriving by public transport.
Ms Barhon had the following documents: 1. Brief of evidence (documentary only); 2. The charge certificate; 3. A certificate pursuant to s 166 Criminal Procedure Act 1986; 4. The Crown Case Statement; 5. The report of Dr McSwiggan of 23 November 2023 and her supplementary report of 16 January 2024; 6. Criminal History; 7. The video recorded interview of the accused on 20 May 2023; and 8. Body Worn Camera Footage of the accused on 19 May 2023 (two videos).
Ms Barhon sought Neuropsychological test data from Dr McSwiggan but understood she was unwilling to disclose this information.
The accused presented as an older man with a weathered sun damaged appearance, of fair complexion with blue eyes and short grey hair, dressed in tattered casual clothing and a cap. He maintained good eye contact but had a paucity of facial expressions. Ms Barhon observed: 1. The accused presented differently to Dr McSwiggan and Ms McCarthy. To Ms Barhon he presented as disgruntled at having to attend the assessment as a result of the alleged offence. Though willing to participate, he was often dismissive and prickly and needed to be regularly encouraged to elaborate and expand on his responses. This typically resulted in more comprehensive information about his history and understanding. At times it was evident that he was unwilling to divulge certain information (rather than being unable to) and became agitated with attempts to explore further details. During formal testing he intermittently required encouragement to persevere, and for some tasks it was apparent he was not putting forth his best efforts. 2. The accused spontaneously remembered Ms Barhon on the second interview, a week later, the purpose of the assessment, and the general content of their previous interaction. 3. His speech was fluent and normal in rate and tone. He spoke in simple language commensurate with his reported background history. While receptive language was preserved, it was evident he had at least a mild hearing impairment, needed information to be conveyed in a loud and clearly enunciated voice, and on several occasions needed things repeated due to mishearing. He did not bring his reading glasses to the assessment but conveyed that the stimuli were large enough, and that this did not impact his participation. There was no indication that he struggled to see task stimuli. 4. The accused as reluctant to discuss his recent mood, although conveyed heightened stress and anxiety since the collision in May 2023, most predominantly recurrent distressing thoughts and dreams upon his vivid recollection of seeing the deceased's body after the incident.

The Accused's Background

The accused correctly recalled being "63 or 64" years of age and identifies as an Indigenous Australian. He was born and raised around Warren by his maternal grandparents; his mother was under 16 years of age when he was born.
His parents' relationship was de facto. They always lived elsewhere such as in Broken Bay and Cobar. He had little contact with his parents throughout his life, seeing them a handful of times when they came to visit. His relationship with his grandparents was good and harmonious. He had approximately ten siblings. He had "nothing much to do with them" and apparently did not live with any of them. He grew up with various other members of his extended family living close by. He continues regular contact with relatives who live nearby.
The accused lives in Warren, in a one-bedroom private rental unit. He denied issues with living independently, aside from not having a driver's licence. He primarily relied on others for transport to appointments but otherwise caught public transport independently, such as on the second occasion he was assessed when he reported independently catching public transport to Dubbo to attend the appointment.

. Education and Employment:

The accused was reluctant to discuss in detail his school history. He attended Warren Public School; he disliked school. He denied learning difficulties; he learned to read and write; however, was generally ranked bottom of the class. He was unsure but suspected he had had repeated grades. He progressed to Warren High School but had often truanted and had not participated in learning. He left school at the earliest possible age; which he estimated to be Year 8 when 15 or 16 years of age, although he was not sure. He denied difficulties with the social aspect of school and made friends easily.
After leaving school he was employed droving and caring for sheep on various properties on and off for 30 years when not in custody. He was incarcerated numerous times from early adulthood until his 40's for driving offences including "drink driving". He received Centrelink benefits for many years due to "unemployment". He retired five to ten years ago because he was too old for the physically demanding work but continued to do casual work now and then.

Relationship History;

The accused had not married and had no dependants. His one serious relationship about 20 years ago lasted 12 to 18 months.

Alcohol and Substances

The accused had a 50-year history of smoking 10 to 15 cigarettes per day, denied any and all history of illicit substance use, and was evasive about his alcohol use, giving the impression he was minimising its extent.
With encouragement, he said he began drinking almost exclusively beer when about 14 years of age. He had a lifelong pattern of drinking beer typically once per week but later remarked, "if I want to have a beer I have it". He was reluctant to estimate the quantity of alcohol he would drink, but at one point indicated he would consume "half to a full carton of XXXX Gold" once per week. He denied ever drinking on a daily basis.
He reported that after the collision he ceased drinking alcohol. He was compelled via the Royal Flying Doctor Service to have regular contact with a Drug and Alcohol practitioner who visited him approximately fortnightly. He felt this was unnecessary. He reported good appetite and ate regular daily meals he prepared.
Ms Barhon noted in the report of Dr McSwiggan of 24 November 2023 that the accused disclosed to her a pattern of drinking 'most days' and could consume 'a case of beer or five litre Moselle over two days as standard intake', and that his long-term friend Mr Marks described the accused to have been a 'severe alcoholic' over the forty years they had known each other, and 'could be inebriated for days without break' and that he was not eating adequately.

Medical History

The accused said he was generally well and healthy throughout his life, rarely needed a doctor, and never had regular medications before the collision.
The reported significant history was of multiple brawls at the local pub when intoxicated. He had not sought medical attention after these, but acknowledged he had likely been concussed multiple times. I incident about 25 years ago where he was more severely assaulted and thrown through a window, after which he attended hospital for stitches to a scalp laceration. He described no persistent post concussive symptoms following these events.
The accused sustained injuries to his right arm and ribs after coming off his motorbike about 30 years ago. He did not recall sustaining a head injury on this occasion.

Mental Health History

The accused said he had no history of any mental health symptoms and had never seen a mental health professional. He denied any history of depressed mood, anxiety, suicidal ideation, or symptoms of psychosis.
He reported that after the collision in May 2023, he experienced marked deterioration in his mood, feeling "down all the time" with recurrent distressing thoughts and dreams about the collision. He remarked, "if you'd seen what I'd seen, you'd be in a padded cell in Orange Hospital" and acknowledged that he vividly recalls certain details such as going over to the deceased's body and observing his injuries. He described intrusive thoughts about the collision "all the time" and woke up to six times per night from nightmares. Shortly after the collision he attended his GP who prescribed a "sleeping tablet, 15mg" which he continues to take nightly. This improved his sleep; and he now typically wakes only twice per night.
He said his reluctance to discuss the details of what happened was due to it bringing distressing thoughts and images to mind. He was averse to the suggestion that he seek further support for his mental health symptoms, remarking that if he needed to talk to someone, he would confide in those close to him, like his aunt. He was unwilling to discuss his recent mood and symptoms in further detail.

Forensic History

His forensic history, so described, including references to his criminal history I do not bring to account in the decision I must make, except to the extent that he held the perception that he was at risk of its use against him in the proceedings. He reported an extensive history of driving related offences, including numerous charges of "drink driving" dating back to his late adolescent years, and for which he had served time in custody. He expressed his belief that his criminal history would be used against him in the current matter as it establishes a pattern of driving related offences, including driving while intoxicated. The supplied criminal history as summarised was extensive.

First Report of Dr McSwiggan dated 24 November 2023:

Ms Barhon discussed Dr McSwiggan's first report and that the accused was interviewed and assessed by her via audio visual link for a period of 60 minutes on 31 October 2023, separately interviewing his support person, with a further 20 minutes spent with the accused later,. The history attributed to the accused was of sustained hazardous alcohol use ceased approximately three to six months before. Dr McSwiggan administered a brief set of cognitive tasks. He was oriented to time and place and could recall some current affairs. Immediate attention was 'mildly reduced' and working memory was 'poor'. He struggled with a verbal abstract thinking task and generating words that start with a particular letter. His memory appeared impaired due to poor encoding of information, but he was not considered forgetful. Ms Barhon wrote, Based upon the available information it was considered he had a diagnosis of 'Severe Substance Use Induced Persistent Minor Neurocognitive Disorder' - this meaning his cognition was only mildly reduced and does not impact upon his everyday functioning in a significant way. It was also suggested that his condition could relate to an underlying 'untreated chronic vascular diseases'. Dr McSwiggan later indicates his diagnosis to be 'Minor Neurocognitive Disorder due to (probable) Alcohol Related Dementia' due to his presentation and scores on (brief) cognitive testing which showed impaired executive skills.
Ms Barhon writes that it is of note that the diagnosis Dr McSwiggan gave, which adheres to the ICD-10-CM labelling, is correctly classified as 'severe alcohol use disorder with alcohol-induced mild neurocognitive disorder, persistent' (F10.288). Further, although Dr McSwiggan indicated that this diagnosis is not 'minor' as the title implies, to achieve this diagnosis it must be reiterated that there is only mild objective decline on neuropsychological testing and that these deficits do not have any meaningful impact on everyday functioning.
Dr McSwiggan further concluded that the accused, on balance, 'could be considered unfit' as he did not meet the minimum criteria (as per s36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020), and that no modifications could be made to facilitate his participation in a trial.

Supplementary Report by Dr Sally McSwiggan - dated 16 January 2024

Ms Borhan commented upon the 20-minute interview of the accused by Dr McSwiggan leading to this report and that she maintained her previously expressed opinions but noted that Dr McSwiggan indicated that he suffered from only mild neurocognitive disorder, which according to Ms Borhan would equate to modest decline on formal testing that does not impact upon the person's everyday functioning.

Expert Report by Alen Lin (Pharmacologist) dated 15 September 2023;

The accused's calculated most likely blood alcohol concentration at the time of collision was 0.241 grams of alcohol per 100 millilitres of blood. Further, at the time of driving, the accused was under the influence of alcohol to the extent that his driving ability was very substantially impaired.
This level of blood alcohol concentration would have resulted in 'gross impairment of driving ability including impaired perceptions, divided attention, visual scanning and peripheral vision, vigilance, mood, and reaction skills; flushed face, irritability, slurred speech, unsteadiness, and clumsy movements, all consistent with the effects of alcohol. His sleeping in the car is consistent with the CNS depressant effects of alcohol and contrary to the accused's belief he was not feeling fatigued.

Neuropsychological Assessment;

Ms Barhon administered the following: 1. ACS Test of Premorbid Functioning; 2. Addenbrooke's Cognitive Examination - Third Edition (ACE-III); 3. Test of Memory Malingering (TOMM); 4. Weschler Adult Intelligence Scale - Fourth Edition (WAIS-IV) - select subtests; Weschler Memory Scale - Fourth Edition (WMS-IV) - select subtests; California Verbal Learning Test - Third Edition, Brief Form (CVLT-3-BF); Rey Complex Figure Test; Trail Making Test; 5. Delis Kaplan Executive Functioning System (DKEFS) - select subtests; Wisconsin Card Sorting Test; Depression Anxiety and Stress Scale - 21 item version (DASS-21).
These were patently more extensive than the tests administered by Dr. McSwiggan.
Ms Barhon provided a table of descriptive labels and associated percentile rating against which to compare the results of the tests administered: Percentile Rank Classification ≥ 98th Very Superior 91st - 97th Superior 75th - 90th High Average 25th - 74th Average 9th - 24th Low Average 3rd - 8th Borderline <3rd Impaired

Premorbid intellectual functioning:

On an irregular word reading task designed to provide an estimate of premorbid functioning, the accused performed at the low end of the Low Average range (i.e. around 10th to 15th percentile) consistent with his reported level of educational and occupational functioning.

Global cognitive screening task (ACE-III):

The accused scored 65/100, below the recommended cut-off for suspected major neurocognitive disorder (normal range score ≤82).
The normative sample on which the cut-off was based was a small sample of 53 healthy older adult controls with an average of 14 years of education, and therefore is not representative of individuals with the accused's background. He lost points across all subdomains of this measure, but most significantly on the memory and fluency subdomains. The memory domain is not based upon purely recall measures, but rather bases a portion of marks to encoding of information and some points for knowledge of facts (such as naming the current NSW Premier).

Attention and working memory:

The accused's Immediate span of attention was intact, scoring in the Average range; he could reliably hold sequences of up to five pieces of information in mind. On two similar tasks of working memory, requiring manipulation of strings of numbers in mind, he scored in the Low Average range. He also scored in the Low Average range on a mental arithmetic task. These scores were all in keeping with premorbid expectations. He made two errors on a serial subtraction task, although was able to redirect his focus and complete the task successfully.

Processing speed:

On an index of processing speed, and a further speeded task requiring mental tracking and visual search, the accused scored in the low Borderline range (i.e. in the bottom 5 percent).
His score was in the Extremely Low range on a verbal-based task where he was asked to identify colours and words at speed, which reflected a reduction from premorbid expectations.

Language

The accused did not demonstrate any issues with receptive or expressive language, aside from suspected mild hearing loss. On cognitive screening, he was able to follow simple commands, consistent with his ability to follow questions and task instructions throughout the assessment. He could generate two simple written sentences without spelling error. He could name a series of common objects without difficulty and demonstrated intact semantic knowledge about some of these items. He could repeat simple phrases and words but made errors when asked to read a series of irregular words (e.g. pint) - which was unsurprising given his reported educational background.

New learning and recent memory

Assessment of recent memory (defined as the ability to learn and retain new information) was conducted. Subtests from the WMS-IV together with the CVLT-3 were administered to examine these functions in the verbal modality and recall of the Rey Complex Figure was used to assess visual recent memory. I have extracted below from the text offered by Ms Barhon: 1. On a verbal list learning task he performed in the Extremely Low range and below the 1st percentile, and below that of his immediate attention span, suggesting that his performance might be an underestimate of his true ability. He was reluctant to engage in this task and perceived his participation as irrelevant and frustrating. Recall of this information following a 30 second distraction and a ten-minute delay were in the extremely low range and below the 1st percentile. Ms Barhon considered that his recall of this information was consistent with diminished participation in this task. He could recall some information he had initially encoded. Performance on the recognition memory component of the task was impaired, with some answers causing suspicion of reduced effort and participation. Despite the suspicion, he performed adequately on an in-built effort component of the test. 2. On a further task of verbal learning and memory his engagement and participation seemed poor. When presented with information in the form of short stories, immediate recall was in the Extremely Low range. He was able to recall much the same information following an extended delay, although this also placed him in the Extremely Low range. Consistently with this, on the recognition memory component of this task, he also scored in the Extremely Low range. 3. As an indicator of visual memory, the accused's incidental recall of a complex figure following a short delay was at the cusp of the Low Average to Average range, despite him producing an overall poor initial copy of this figure. 4. Qualitatively, the accused's memory at a functional level appeared reasonable. He could recall the examiner and the purpose of the assessment at the second occasion he was interviewed (a week later). He also could spontaneously recall various details about his recent functioning and his current legal matter, that would suggest his memory is better than it was presenting on the above tests. While this does not demonstrate an absence of any memory deficit, it is suspected that his underlying memory difficulties were unlikely to be in the range of a true clinical impairment.

Adaptive / executive functioning

The accused's results across tasks of executive functioning varied.
He scored in the low Borderline range (bottom 5 percent) on a verbal abstract thinking task, and in the clinically impaired range on a speeded mental switching task (requiring sequencing of two different sets of stimuli at speed). He demonstrated difficulties with inhibitory control on a task of this nature.
In contrast, on a perceptual (visual-based) reasoning task he scored in the Low Average to Average range. He performed in the Average range on a challenging task of conceptual and flexible thinking.
According to Ms Barhon, Adaptive or executive functions refer to the capacity to regulate and control one's responses in accord with what is happening in a given situation. Essentially these abilities enable a person to deal with new and unusual tasks that require them to reason, problem solve, check that they are proceeding correctly and modify their behaviour if necessary.

Psychological status

On a self-rated questionnaire regarding recent mood (DASS-21) the accused endorsed symptoms of depression and anxiety in the Extremely Severe range, and stress in the Severe range. He repeated that these symptoms developed following and in response to the collision.

Motivation and effort:

Tests designed for an objective indication of motivation and effort were administered. The accused's performance was variable but did not clearly indicate frank exaggeration or overt poor effort. For example, he performed below the recommended cutoff on a stand-alone effort measure, but not significantly. He performed adequately on two of the three embedded effort tasks administered.
Overall, in conjunction with his presentation and manner during task completion, Ms Barhon considered there was a degree of diminished effort during elements of testing which may have contributed to lower-than-expected scores. His demeanour and attitude during completing of certain tasks contributed to this impression.

Fitness to Stand Trial

Ms Barhon addressed the accused's fitness against the criteria in s. 36(1) Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

(a) understand the offence the subject of the proceedings

The accused understood that he was charged with "dangerous driving and causing death" and recalled this was the charge written in the document supplied to him by his legal team.
He said recalled the collision and described it in detail matching the Crown Case Statement. He could not recall the exact date of the collision but correctly recalled that it was last year, 9 to 12 before, in the afternoon on the "back road between towns".
When challenged about the charge of intoxication at the time he said he was not drunk because if so he would not have stopped. He said that because of his lengthy history of traffic and driving related charges, in particular his "drink driving record", he would have kept driving to avoid a further 'drink driving' charge had he thought himself intoxicated. He spontaneously volunteered that he had stopped at the "Colo Pub" for a single "schooner of XXXX Gold" one to two hours before the collision.
He recalled that the police had a video of him when at Colo Pub confirming this, and that he was shown the video by his legal representatives at their office in Dubbo a few months before.
He consistently said that he had consumed "six longnecks" the evening before but denied having any other alcohol aside from the one schooner at the Colo Pub on the day before the collision. After the incident however, he said he consumed "four to six cans" of XXXX Gold and believed this to be the cause of his high blood alcohol concentration when later tested.

(b) plead to the charge

The accused said he understood 'guilty' "means you done it… caused the accident". When questioned further, he said that if he were to plead guilty it would mean "I'm admitting it". He understood 'not guilty' to mean "you didn't do it". He consistently expressed his intention to plead "not guilty" because "it wasn't my fault". He said he had looked away from the road for "two seconds" to grab his cigarettes when the impact occurred, but prior to looking away the road had been clear and straight and the deceased must have not been looking and "pulled out in front of me". He was adamant he would plead not guilty because the collision was purely an unfortunate accident and he could explain the level of intoxication on blood testing as due to the multiple further beers shortly before the police arrived to question him.

The accused was unclear of his right to challenge jurors but accepted the simple explanation Ms Barhon gave him. Ms Barhon wrote that he could be further educated on this and supported when invoking this right by his legal representation.
This is invariably what occurs in all trial in which I have presided, granting the request of counsel, or inviting counsel to assist an accused with the decisions to challenge prospective jurors.

(d) understand generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged

The accused admitted his extensive history of previous court attendance, estimating he had been to court "20 or 30 times" for various offences dating back to when he was 18 years old. He recalled these offences had primarily been "Local Court" and that he typically pleaded guilty, therefore could not recall having gone to trial before. He showed a basic understanding that the purpose of the proceedings was inquisitorial in nature, remarking "they're trying to prove I'm guilty, and I'm saying I'm not". He acknowledged further explanations about this.
He acknowledged that by pleading not guilty as he intended he would need to go to a trial to have the matter further explored. He showed limited understanding of the roles of key members present in a criminal trial, but seemed to grasp the purpose of the roles at a basic level and could be further educated by his legal team. He said that the role of his solicitor was to "prove that I am not guilty" and acknowledged the explanation that they were there to defend and represent him. He said the role of the prosecution was "trying to prove I'm guilty". He could not provide a clear understanding of the role of the judge, remarking that they "say if you're guilty or not guilty" and with further explanation acknowledged they "hand down what happens" to the defendant. When asked about the jury he could demonstrate understanding that they were approximately "half a dozen" "people from the streets" and that their job is to "sit there and see if I'm guilty or not guilty". He understood the composition of the jury and their role when further explained to him.

(e) follow the course of the proceedings so as to understand what is going on in a general sense

The accused had the capacity to attend information to an average level, and functionally could demonstrate capacity to retain information, particularly the details of his legal matter. His ability to perform at speed was poor on formal testing, but in conversation there was no evidence that he required longer than normal to attend to or process verbal information. There were no issues with the general flow of conversation, or with processing complex questions or instructions, or with responding at a reasonable rate during tasks which required a degree of mental processing.
The accused tended to disengage and avoid certain topics of conversation he did not want to discuss by indicating his understanding and recall was limited. His reluctance to divulge information should not be taken as a lack of understanding or remembering, since on many occasions when challenged and encouraged to elaborate he showed better insight and memory than he initially conveyed.
Ms Barhon considered likely that he could follow the proceedings and understand what is happening in a general sense. Modifications to the proceedings suggested later in the report could optimise the accused's understanding.

(f) understand the substantial effect of any evidence given against the person

The accused demonstrated at least a basic understanding of evidence and the substantial effect it could have. Asked directly what he understood evidence to mean, he said that it meant "they've got something to prove I'm guilty… they've got something on me". When asked to provide an example of evidence that might be used, he said the video of him having a schooner at the Colo Pub was something likely to be used as evidence. He could provide other examples such as "cameras", and acknowledged other evidence, such as photographs, witness statements, and phone calls. He volunteered that the "blood tests" taken to say he had been drinking alcohol could also be used. When asked what impact all these bits of information could have, he said "a fair bit I'd say…. If they're going against me, can't be good".

(g) make a defence or answer to the charge

The accused could articulate his reasoning for pleading not guilty as he intended to do as he believed the incident was an unfortunate accident the result of momentary inattention to the road by both himself and the deceased.
He could demonstrate the capacity to reason and think flexibly on testing, despite variability across performances. His refusal to accept the evidence that he was intoxicated with alcohol beyond one schooner of beer at the time of the incident - which would implicate him as guilty if he did acknowledge this fact - does not equate to an inability to reason.
Despite his low performance on several formal cognitive tasks, Ms Barhon considered that upon all the information available the accused could make his defence to the charge, particularly with support from his legal representation.

(h) instruct the person's legal representative so as to mount a defence and provide the person's version of the facts to that legal representative and to the court if necessary

The accused said he had discussed the facts, his version of events, and his intention to plead not guilty with his solicitor. He understood that he had been driving the car that collided with the quadbike resulting in the death, however argued that he intended to plead not guilty as he perceived the incident to have been an unfortunate accident which was as much the fault of the deceased not paying attention as he drove out onto oncoming traffic.
The accused remained adamant he had not been intoxicated until consuming several beers after arriving at the 'Emby property'. HIs refusal to acknowledge further alcohol consumption prior to the incident does not per se demonstrate a lack of memory or understanding. It could equally be explained as a rational decision to not implicate himself as guilty when his current intention is to plead not guilty.
The accused demonstrated reasonable attention and working memory, reasonable functional memory for recent events, and was aware of the details of the alleged offence and much of the evidence against him. There was insufficient evidence of inability to instruct his legal representatives.

(i) decide what defence the person will rely on and make that decision known to the person's legal representative and the court

The accused was reluctant to discuss details of his previous interactions with his legal representatives. This was not unusual in assessments where the person understands that the assessor is evaluating them at the request of the prosecution. It demonstrates insight into the necessity for caution about divulging certain information. This notwithstanding, the accused said he could recall his previous interactions with his solicitor and that the general nature of their discussions had been similar to what he and Ms Barhon discussed during questioning regarding his fitness.
He reported having gone through the charges and had given his version of events. He indicated that his friend Ross Marks would accompany him to appointments with his solicitor as a support person, and because he cannot currently drive. When questioned about whether he had found any components of the discussions difficult to understand he remarked "they understand me, and I understand them" and seemed offended that anyone would question his ability to understand general conversation.
Based upon her interactions with the accused Ms Barhon considered that he could work with his legal representatives to decide on his defence and to make that decision known to others.

Clinical Opinion

After summarising the history described earlier in her report Ms Barhon repeated her description of the accused's clinical presentation on each occasion she saw him and noted that upon formal cognitive testing he was oriented and could demonstrate functioning consistent with premorbid expectations on tasks of immediate attention, working memory, visual memory, and aspects of executive functioning e.g. perceptual reasoning, and conceptual and flexible reasoning.
In contrast, he demonstrated borderline to extremely low range scores on tasks of processing speed, some further tasks of executive functioning, and performed poorly overall on tasks of verbal learning and memory due primarily to poor encoding of this information. Ms Barhon held concern that he was not consistently putting forth his best effort toward testing, which might explain some of his poor scores. Additionally, while he did perform well below most same aged peers on several of the administered cognitive tasks, this was based on normative data which compared him to individuals poorly representative of the accused's background. For example, the normative sample used to interpret several of his results was comprised of predominantly white and high school educated USA citizens. Given the accused's known background it was expected that he would be largely performing in the bottom 10 to 15 percent of same aged peers. More importantly, someone's performance on a series of cognitive tests (particularly when that person is not used the test taking format or environment) does not necessarily equate to their true ability, and other equally relevant information needed to be integrated - namely, their presentation conversationally and apparent functioning day-to-day.
The accused it was believed always lived independently and denied any issues with self-managing everyday affairs. He was evasive about alcohol use history, against evidence of a long history of persistent heavy drinking with poor nutritional intake. He said he remained abstinent from alcohol over about nine months since the collision and was required to attend fortnightly with a Drug and Alcohol Service.
Upon the available information, it appeared likely the accused is in early remission from Alcohol Use Disorder as classified in the DSM-5 and is experiencing some cognitive decline in the areas of processing speed, executive functioning, and possibly new learning and memory as a result of his heavy alcohol use and poor diet.
The severity of his alcohol use disorder was unclear to Ms Barhon upon the available information, considering the limited information available regarding his previous attempts to reduce intake or its impact upon his social and occupational functioning.
Nevertheless, in agreement with the diagnosis of Dr McSwiggan in her report dated 23 November 2023, Ms Barhon considered that the accused has Alcohol Induced Mild Neurocognitive Disorder. The accused acknowledged clinically elevated symptoms of depressed mood, anxiety, and stress on a self-rated questionnaire, and described other symptoms strongly suggestive of Post-Traumatic Stress Disorder (PTSD) during interview. These had arisen only after and in response to the collision. Ms Barhon considered that these to fit with the impact of current situational stressors and likely PTSD from the collision. When she raised formal support to address mental health symptoms the accused expressed strong reluctance.
Ms Barhon responded to the following questions:

Whether in your opinion the accused has a "mental health impairment" or a "cognitive impairment" as defined in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, and on what basis
Ms Barhon considered the accused met criteria for a mental health impairment in that he represented clinically significant mood disturbance that was impacting upon functioning (sleep).
Though further clinical interview would be needed to explore his current symptomatology, it is likely he is currently suffering from PTSD from the collision.
In partial agreement with Dr McSwiggan, it is Ms Barhon's opinion that the accused is suffering from Alcohol Use disorder (in early remission) with Alcohol Induced Mild Neurocognitive Disorder. The key features of Mild Neurocognitive Disorder (or Mild Cognitive Impairment) as defined in the DSM-5 include modest decline from previous level of performance in one or more cognitive domains (based upon reports or observation of mild cognitive decline and modest impairment on objective cognitive testing), and that the cognitive impairments do not interfere with the capacity for independent in everyday activities/functioning.
Research of evidence on alcohol induced cognitive impairment generally suggests there can be some recovery of cognitive functioning over an extended period (typically the first one to two years) after the individual abstains, though, the likelihood and extent of any recovery depends on a variety of factors such as the person's previous quantity and duration of alcohol consumption, their age, and their overall health status, amongst others.

Whether the accused is unfit to be tried, having regard to the fitness test at section 36 (and the factors therein) and section 44(5)(a) (in relation to any modifications or assistance), and the reasoning for your opinions on the balance of probabilities,
Ms Barhon is of the opinion that the accused is likely fit to be tried. He could demonstrate preserved recent memory including for the key details of the allegations against him, he could recall and understand all the information conveyed to him by his legal representatives and had at least a superficial understanding of the fundamental aspects of Court proceedings. He could clearly articulate awareness of the charges, plea options, how and why he intended to plead not guilty, and the significant effect of the likely evidence against him. He demonstrated a limited understanding of some of the intricacies of legal proceedings, such as his right to challenge jurors, but her opinion is that he could be further educated on these and he appeared to understand the concepts when briefly explained to him briefly and in simple terms.
There is evidence to suggest the decline in some aspects of cognition, most likely due to the long-term effects of sustained heavy alcohol use, was insufficient to render him unfit to plead or stand trial.
Ms Barhon's opinion is that modifications could be made to better facilitate his participation in legal proceedings, including the presence of a support person in addition to his legal representatives so he can seek clarification or repetition of information that might be unclear, if necessary. He could benefit from regular rest breaks (every hour) to confer with his legal representatives regarding questions he might have, and the opportunity for a summary of proceedings to be reiterated to ensure his understanding.
He likely suffers from mild hearing loss and may benefit from having this investigated and remediated to make sure this does not impact upon his participation.
I note that in all the District Court there is the option of the hearing loop facility to assist any who are hearing impaired.

In the event you are of the opinion that the accused is unfit - whether the accused may become fit to be tried within the next twelve months, or not, and the reasoning for your opinions
Ms Barhon considered on balance that the accused is likely fit to plead and stand trial. On the other hand if it were determined by the Court that he was likely unfit, considering his reported abstinence from alcohol and likely improved nutritional intake over the last approximately nine months, further cognitive recovery is possible within the subsequent 12-month period.

Any areas of agreement and/or disagreement with Dr McSwiggan, again with your reasons
Ms Barhon considered that the collateral history obtained from Mr Marks included in Dr McSwiggan's report of 24 November 2023 was limited and based upon information that only corroborated her stance about the accused's alcoholism and its effect on current cognitive functioning. There was no other corroborative evidence available to her to support this. While the information provided by Mr Marks supports that the accused has a long history of sustained frequent alcohol use, to the level that could cause serious harm, the assumption that his recent change in manner, being 'less tolerant, less caring, and more irritable, could equally and more likely be explained by his underlying mood disturbance resulting from the collision and ongoing legal issues.
Dr McSwiggan highlighted that the accused could not tolerate any feeling of frustration, a characteristic of heightened stress, but it appears Dr McSwiggan conducted a very limited battery of cognitive tests based upon the description in her report, appearing to have administered only four tests (one of which was a screening tool). Furthermore, all tests were conducted over AVL which might have hampered engagement and performance.
Dr McSwiggan indicated in the results section of her report that the accused demonstrated a mild reduction in attention and working memory; however, this was not supported by the current assessment and does not fit with her reported results. For example, on her assessment she reported his basic attention span was 'mildly reduced', however he was able to demonstrate an average range attention span on the current assessment.
Further, on both assessments a specific numerical based working memory task was given. On both occasions the accused could reliably reverse three digits in correct order, which places him at the cusp of the Low Average to Average range -above what Dr McSwiggan estimated to be his premorbid level of functioning. Dr. McSwiggan interpreted this as a 'poor' score. She also indicated that he scored poorly on tasks when asked to rapidly generate words to a given letter or category. This could be attributed to a variety of factors such as slowed processing speed, reduced vocabulary, weakness in spelling or writing skills, issues with lexical retrieval, or a lack of engagement with the task. In Ms Barhon's opinion, that he was equally poor at retrieving words to a given letter and category is less clearly indicative of an executive deficit.
Dr McSwiggan reported that the accused was unable to evaluate similarities between common items. This same task was administered in Ms Barhon's assessment, where he scored in the Borderline range. Though this remains a weak score compared to most same aged peers, it was only mildly reduced from his premorbid level of expectation. As these were the only tasks of executive functioning reported, it appears Dr McSwiggan's assumption about the level executive dysfunction was based on limited objective information.
Dr McSwiggan interviewed and tested Mr Gall over a one-hour, with a further 20 minutes spent a few months later discussing the evidence regarding his blood alcohol concentration around the time of the alleged offence. Ms Barhon is of the opinion that it is extremely unlikely that one could conduct a thorough interview or assessment in such a restricted period of time, the assessment likely further limited by not seeing the accused in person.
Dr McSwiggan's opinion regarding fitness appears to be based upon limited supporting evidence and a presumably very brief interview in which she would not have been able to explore his level of understanding in any detail. When Ms Barhon assessed the accused, he often provided initially quite limited responses but could frequently offer greater detail and understanding with further exploration.
Dr McSwiggan's report includes apparent assumptions about the accused's capacity to enter a "sensible" plea or make an able defence due to his 'severely limited lack of insight around the alcohol consumption evidence'. Ms Barhon noted the accused's right to enter a plea of not guilty and have the opportunity to refute evidence put forward by the prosecution, regardless of whether one perceives the decision to be 'rational' or sensible. The accused's express refusal to accept evidence regarding his blood alcohol concentration, and one might add his assertion that any excess of alcohol found in his system was the consequence of ingestion after the collision, is in keeping with his expressed defence that the incident was an accident. To accept this evidence as true, would implicate him as guilty, which would have made less rational sense. He accepted that the evidence could be detrimental to his defence.
The accused's express intention to take a passive approach to instructing his legal representatives, allowing them to help him mount a defence, suggests rationality and understanding that his legal team may be in a better position to develop a clear legal argument and position.
Ms Barhon noted that performance on neuropsychological testing is not a replacement (an alternative of substitute) for fitness and does not on its own necessarily provide an accurate depiction of a person's level of functioning. Many individuals with lower levels of cognitive functioning than the accused (such as those with mild intellectual disability) are found fit to be tried, demonstrating the critical need to take other factors and elements of a person's presentation and history into consideration.

Further Report 5 June 2024

Ms Barhon provided a supplementary report on 5 June 2024 in response to neuropsychological test data from the assessment of the accused conducted by McSwiggan on 31 October 2023, upon which she reported as discussed earlier.
After references to the reports already provided and acknowledgement of her obligations as an expert witness, she continued with the following propositions: 1. It is standard practice when there is repeat psychometric testing - particularly when reassessment is occurring within less than twelve months - that any previous test data be sought. Dr McSwiggan's test data was requested at the time of Ms Barhon's original assessment in February 2024, but could not be obtained prior to finalisation of her report. 2. This notwithstanding, based upon the description of Dr McSwiggan's test results in her report and the results of her own assessment and interview she could formulate her opinion without these results. 3. Ms Barhon understood that Dr McSwiggan's test data from her assessment with the accused was subsequently produced in response to a subpoena so the information would be available for her consideration in relation to her previous expressed opinions. With the opportunity to review these test results, those findings did not alter her opinion and were not out of keeping with her previous interpretation of results. 4. Ms Barhon provided her summary of the findings: Dr McSwiggan concludes Mr Gall's performance on a basic/immediate attention task was 'mildly reduced'; however, he scored at the high-end of the Low Average range, and therefore slightly above where she placed him premorbidly. Further to this, on my assessment with Mr Gall he performed in the Average range on this task. One should not be able to improve their attention span on such tasks, rather the most likely explanation is that he was able to give a better indication of his true ability when I assessed him in person. To reiterate my previous report, Dr McSwiggan indicated his working memory was poor and her test results showed he was scoring in the Borderline range and at the 3rd percentile on an index of working memory. When I assessed Mr Gall, he scored at the lower cusp of the Low Average range and at the 9th percentile on this index, in keeping with premorbid expectations. It is again most likely the difference in test performances is attributable to reduced engagement, and perhaps the effects of conducting testing via AVL versus in person. Mr Gall performed similarly on both assessments on an abstract reasoning task requiring him to reflect upon the similarities between two words (scoring in the Borderline range). He also appeared to generate a low number of words starting with a letter within a short timeframe. Both these results were not considered significantly out of keeping with his estimated premorbid level of functioning. Dr McSwiggan only conducted these two brief verbal-based tasks; however, on more comprehensive executive functioning testing I found Mr Gall was able to demonstrate performances in the Low Average to Average range on some tasks. Dr McSwiggan's test data revealed poor performances on tasks of auditory memory. It is noted that Mr Gall's hearing difficulties and possibly reduced engagement with these tasks may have impacted these scores. This does not appear to have been considered by Dr McSwiggan. It is noted that on one task which was repeated at both assessments, while his scores were still very low, he performed better and demonstrated a reasonable ability to retain learnt information. This demonstrated he was capable of achieving better results when assessed in person, despite his engagement with such tasks still clearly being diminished (i.e. requiring consistent encouragement to persevere and expressing his reluctance to participate).
When assessed by Ms Barhon the accused demonstrated a degree of hearing impairment and was at times poorly engaged in tasks which impacted upon scores. She observed this may not have been as obvious to Dr McSwiggan when assessing him via AVL, because such challenges can be misinterpreted as a lack of understanding or poor memory. The accused was difficult to engage in cognitive testing and required consistent encouragement to persevere with tasks, which would have been more challenging via AVL. Building rapport with individuals with backgrounds such as the accused can be particularly challenging when performing assessment by way of AVL, and this alone can diminish performance on cognitive testing.
Ms Barhon observed that the cognitive testing completed by Dr McSwiggan would have taken at least 30 minutes to complete, and the entire assessment (including consent, all testing, clinical interview, and discussion regarding fitness criteria) was completed in 60 minutes. Considering the brevity of the assessment, it is unlikely Dr McSwiggan conducted a thorough interview in which she could have further pursued his true capacity such as when he defaulted to answering questions with vague or dismissive answers such as "not sure" or "don't know".
Ms Barhon's four and a half hours interviewing and assessing the accused in person provided the opportunity to spend significantly more time exploring his true level of understanding. As noted previously, the accused could often demonstrate a greater level of understanding and memory for recent events when encouraged to elaborate on his responses.

Further Report 19 June 2024

Ms Barhon provided a further report on 19 June 2024 in response to Dr McSwiggan's supplementary report on 11 June 2024 of which she offers criticism including the following points: 1. It is unclear how Dr McSwiggan formulated her opinion that the accused's reasoning was impacted by impaired insight considering the findings in both of their assessments. 2. It appears that Dr McSwiggan presumes that the accused lacked insight because when pressed upon the evidence regarding his blood alcohol level he did not agree with it and did not accept it, whereupon Dr McSwiggan appeared to conclude that he could not appreciate the significance of the evidence. 3. It is not unusual for an accused to not to accept evidence averse to them when they intend to defence the proceeding, particularly during discussions with a third party who is writing for the court. 4. To rule out alternative explanations and assume cognitive effects of alcohol is inappropriate. 5. Dr McSwiggan's assumption that the accused fails to weigh the evidence as she would does not align with the requirement of fitness and is contrary to the literature. A person needs only a rudimentary understanding of the evidence against them, aware of its existence and that it is against them. Though they need to be able to weigh the evidence when making a plea decision they might do so as others might not and regardless of the weight they ascribe to the evidence decide to test the evidence at trial.
The report generally reiterates the findings and opinions offered in Ms Barhon's earlier reports rejecting the further assertions by Dr McSwiggan. Specifically, 1. Paragraph 2: Dr McSwiggan apparently did not consider further examples of how the accused might or might not demonstrate problems with reasoning. Ms Barhon provided examples of the accused's responses demonstrating insight and a capacity to reason about his circumstances. 2. Paragraph 3: Ms Barhon provided examples of the accused's responses demonstrating his capacity to reason and reflect on the elements of his case. 3. Paragraph 4: Ms Barhon summarised the responses by the accused regarding his ingestion of alcohol including his acknowledgement that the police arrested him because he was drunk. His wish to have the evidence tested and offer an alternative explanation suggests reasoning rather than lack of ability to do so. 4. Paragraph 5: The accused "freely recalled" being shown by his solicitor the video depicting him at the Colo Hotel before the collision, aware that it could be used in evidence against him, suggesting better cognitive skills that asserted by Dr McSwiggan. 5. Paragraph 6: The accused's reluctance to acknowledge the amount of alcohol he consumed to Dr McSwiggan did not equate with lack of awareness, noting that in the consultation with Ms Barhon though initially unwilling to discuss elements of the history and understanding legal matters, when encouraged to elaborate in the longer consultation conducted by her he disclosed comprehensive details. When asked about the collision he said it was not that he could not remember but that he did not want to remember and that he could vividly remember what happened but did not like bringing it to memory because it caused distress. 6. Paragraph 7: The representation that "if they're going against me, can't be good" was a comment not limited to the blood alcohol concentration but in the context of the conversation related to the breadth of the evidence available to the prosecution. 7. Paragraph 8: The test by Dr McSwiggan demonstrating executive dysfunction was limited and did not extend to the multifaceted construct including planning and organisation, verbal abstract reasoning, perceptual reasoning, impulse control, and higher-level attention control. To extrapolate from the limited testing that executive functioning was impaired from and deduce that he does not have the capacity to reason caused Mr Barhon concern. 8. Ms Barhon added, Further to the comments made in my previous reports, someone with Mild Neurocognitive Disorder has evidence only of mild decline in their cognitive functioning - as demonstrated by 'modest' decline on objective testing and no evidence of such deficits extending to everyday functioning. It is reiterated that many individuals with far more severe cognitive impairment, including for example individuals with intellectual disability and executive dysfunction, can and are found it to tried.

The Hearing

Tendered in the proceedings were two documents, one styed "Decision-making capacity evaluation in adult guardianship: a systematic review" by Dr McSwiggan with two colleagues, and the other a paper by Grant A Blake, James R.P. Ogloff & Natalia Antolak-Saper styled Interpreting R v Presser: a clinician's guide to contemporary Australian fitness to stand trial case law. These were referenced in the evidence led concurrently from the two experts.
The parties agreed that the evidence called from the experts would be efficiently presented concurrently against an agreed list of topics settled by counsel and filed in the proceedings. I ordered that the matter proceed accordingly. The course proposed is authorised s 275C, Criminal Procedure Act 1986 which provides, (1) The court may, at any time, give directions as it considers appropriate to enable the giving of expert evidence concurrently or consecutively in criminal proceedings. (2) Directions under this section may include the following - (a) a direction that an expert witness give evidence at any stage of the proceedings, (b) a direction that more than one expert witness give evidence at the same time in the proceedings, (c) a direction that an expert witness give an oral exposition of the witness's opinion on a particular matter, (d) a direction that an expert witness be examined, cross-examined or re-examined in a particular manner or sequence, including by putting to each expert witness, in turn, each question relevant to one matter or issue at a time, (e) a direction that an expert witness be permitted to ask questions of another expert witness who is giving evidence at the same time during the proceedings. (3) A direction may be given under this section only with the consent of the prosecutor and the accused person. (4) This section does not limit any other powers of a court to give directions in relation to evidence, witnesses or the management and conduct of proceedings.
The evidence was led on 19 June 2024 in the District Court, Dubbo. Dr McSwiggan and Ms Barhon gave their evidence via audio visual link.
Exhibit A is the bundle of documents assembled jointly by the parties.
Exhibit B is the report from Lucienne Barhon dated 19 June 2024.
Exhibit C is the article coauthored by Dr McSwiggan.
Exhibit D is the article shorty styled Interpreting R v Presser.
The Crown called Ms Lucienne Barhon and concurrently the accused called Dr Sally McSwiggan. Both affirmed. Neither was challenged about their qualifications, training, and experience. upon which they gave expert evidence.
The accused's counsel took Dr Broadbent to her curriculum vitae and examined upon it amplifying some of the aspects of her professional experience.
The Crown examined Ms Barhon: 1. Upon diagnosis and disagreement between her and Dr McSwiggan, she agreed with Dr McSwiggan that the accused would meet the diagnostic criteria for substance use induced mild neurocognitive disorder. 2. She explained severe substance use induced mild neurocognitive disorder, to which she assumed Dr McSwiggan referred in her reports. There are two components. Someone with a substance use disorder with the classification of severe, meant they meet at least six of the listed 11 criteria for alcohol use disorder in the DSM, such as experiencing cravings, withdrawal, tolerance, and others. Someone using alcohol excessively, unable to control their use, experiences withdrawal. The second component is of mild neurocognitive disorder meaning that there is some mild reduction in the expected level of cognitive abilities but not at a level that would be considered significant or severe and not yet impacting everyday functioning. Taken together, is to say that someone because of their substance use disorder, has induced a mild change in their cognition. 3. She agreed with Dr McSwiggan that there is some cognitive impairment evident. On testing there has been some reduction from premorbid expectations in elements of the accused's cognition.
The Crown examined Dr McSwiggan: 1. She rejected the proposition that she had the opinion that the accused met the diagnostic criteria for severe substance use induced mild neurocognitive disorder but agreed with the use of the term 'minor neurocognitive disorder' which she adopted for her reports. 2. The issue here appeared to be whether the term 'minor' is or is not more appropriate that the term 'mild'. 3. The accused showed some cognitive impairment from her testing. 4. In response to what Ms Barhon said, her view was' much the same' to use her words. She added that in terms of dementing conditions, alcohol induced cognitive disorder, being under the guise of a dementing condition, is fractionated into two forms put into one box or another. The second, where it becomes extremely severe, includes an amnestic (memory disorder) quality to memory as well as functional impairment of everyday living skills. The amnestic quality of the accused's memory led her from the 'major' diagnosis. This did not to mean that it was minor, but merely fractionated as explained in the DSM.
The accused's counsel examined Ms Barhon: 1. She undertook a series of tests as set out in her report of 2 April 2024, to provide a framework for the provision of a diagnosis, and to explore on objective assessment how the accused performed for insight into his level of cognition, to assist in formulating her opinion. There are a number of items of information one would draw upon before a diagnosis of any kind, some testing being part of that process. 2. As to whether any of the tests assess capacity for reasoning, she said reasoning is complex. The tendency is to lump cognitive skill under what one would call executive functioning, that being the skills that often incorporate a number of different aspects of thinking, the ability to focus attention, the ability to manipulate information in mind and extract relevant pieces of it to plan and organise. Executive functioning is complex. Cognitive domain and reasoning tend to fall within it. However, assessing someone's reasoning is something for which one would need to draw various items of information to formulate an opinion. 3. Her testing took at least two hours. The remaining time was spent interviewing the accused. To provide a comprehensive assessment one examines their personal history, background, education, all listed in her report as well as the specific interview relating to fitness criteria. Within that, one is not solely assessing reasoning, but examines a number of different aspects of cognition, behaviour, and how cognitive functioning manifests every day. 4. A clinician must make judgment calls upon what information is relevant and important to include within a report and what is not. It would not be possible to put the entire four and a half hours of assessment interview word for word into a report. There is a judgment about what elements to include. 5. She acknowledged her criticism of the time taken by Dr McSwiggan for testing. Typically in neuropsychological assessment, one is looking at all different aspects of cognition, including premorbid functioning, attention, working memory, processing speed, new learning and memory for visual and verbal information, visual spatial functioning, and different aspects of executive functioning and mood. To provide a comprehensive assessment, one would look at all those different aspects of functioning. Dr McSwiggan's assessment involved a couple of subtests that she felt were most relevant but it was not a comprehensive assessment. 6. Nonetheless, upon the subtests used, Dr McSwiggan reached the same diagnosis as Ms Barhon. 7. Interpolate that it does not follow from this that the accused's capacity assessed by Dr McSwiggan should be preferred over or equated in all respects with the more comprehensive observations by Ms Barhon. 8. The accused was tested for malingering, over 15 minutes, and did not pass. He performed below the recommended cut off for suboptimal effort. However, from his 'laissez-faire' attitude towards the testing, fluctuating participation, and frustration with the assessment, she thought that he was not putting in best effort and performed below the cut off but not significantly so. She did not think the accused was deliberately exaggerating or trying to feign memory impairment but was not applying himself. His 'prickliness' as she described it was more that he did not want to discuss some things and his agitation was about having to do the assessments. 9. Irritability was present throughout. It waned as he warmed to the assessment. Some time was spent in building rapport and discussions put him at ease. When topics perhaps more uncomfortable or distressing for the client are raised, they can become defensive and agitated. This did tend to fluctuate throughout. 10. She did not take the impression that the accused attempted to manager her.
The accused's counsel turned to Dr McSwiggan: 1. Taken to the criticism of her testing, she commented that as an expert in older persons she would use a more flexible, concise battery, looking for particular areas of cognition or interest relevant to conditions of aging rather than assessing every cognitive element of a person. This is consistent with the article Exhibit C providing a systematic review of other studies. 2. I interpolate there that this impacts upon the assessment of Dr McSwiggan's opinion. She provided far more limited observations of the accused to assess his capacity than those Ms Barhon. 3. At page two of Exhibit C halfway down the first column on page 2: No single neuropsychological test, cognitive domain or psychiatric presentation consistently predicts a lack of capacity. Additionally mental screening has little utility beyond staging cognitive impairment. With regard to the second of these passages, one cannot extract from a cognitive screen whether someone has capacity to make decisions and does little beyond saying whether they are mildly, moderately, severely impaired. It doesn't predict anything beyond in terms of capacity. The results of the systematic review discussed in the article demonstrates that decision‑making capacity is more than group membership or scores achieved on standardised tests. 1. At page 10 of the article Exhibit C, in the first column there are recommendations which include: Ideally health professionals should provide medical information, but just as importantly they should provide written evidence of the person's capacity to make the decision under review. … Decision-making capacity is generally conceptualised as the ability to understand the scope of the decision, appreciate that the decision relates to your circumstances and the ability to reason through the possible choices and to communicate those choices. 1. At the bottom of page 10 on the right-hand side: Empirical study and expert consensus [have] endorsed as a gold standard the documentation of a person's ability to understand, appreciate, reason and communicate decisions under review, taking note of their values and preferences, rather than simply engaging in testing. 1. These passages reflect her efforts toward assessment of the accused. Her approach is to examine in a very brief way the framework from the beginning stage of a choice and how that choice comes to be, and 'the reasoning', not only 'the reason for it'. 2. Reasoning involves elements of how people weigh up the decisions, the elements they considered important, and how they weighed them. When a person does not see certain elements in their reasoning, then one starts to see whether or not they can appreciate important things, the perspective of another, and their ability to appreciate that perspective and self-reflect on it. When someone starts to see if they can 'appreciate the elements', do they believe the elements, and then formulate where in that process all of those elements are significant and where there might be difficulties. In the case of the accused significant was the appreciation element. 3. The distinction drawn between 'reasons and reasoning', when a person gives a reason it is in effect what they say about a particular thing, which differs from their capacity to work through the provision of a particular answer or a particular reason.
The accused's counsel turned to Ms Barhon.
She agreed with the distinction between the giving of a reason and the capacity for reasoning as described by Dr McSwiggan.
The accused's counsel returned to Dr McSwiggan: 1. She saw in the accused no indication of malingering behaviour or any sort of impression management. 2. She agreed broadly with the diagnosis of the accused by Ms Barhon.
Counsel returned to Ms Barhon: 1. She confirmed the diagnosis of the accused in early remission. He said on interview, that since last year he had abstained from alcohol. If someone acknowledged they have abstained, one would consider their substance use to be in at least early remission before that first 12 months. 2. This was based solely upon the accused's account. There was no other information to corroborate his current use.
The accused's Counsel turned to Dr McSwiggan:
With regard to the symptoms of cognitive or neurocognitive impairment: 1. Both the cognitive aspect and the neuropsychiatric aspects derived from the neuropathological consequences of overuse of alcohol, but more importantly, the lack of thiamine (vitamin B1) over time, associated with transforming carbohydrates into starch and sugars. Over time this leads to cell death. Commonly with an alcohol like dementia there is a preponderance of executive problems, frontal lobe problems, connectivity, higher order thinking, self-awareness, decision-making, ability to recognise other people's perspectives, and conceptualise. 2. There is also the memory attention element. The person's intellect does not diminish, but the attentional memory elements can, and when it extends into the major element, they suffer a dense amnesia where no further episodic memories can be laid down. The accused retains the capacity to retain some episodic memory. His memory is poor but not at the level of a major impairment. 3. Upon the neuropsychiatric aspects; with demise in executive functions one begins to lose the sense of self in terms of the ability to manage emotions, irritability, with superficiality from the absence of emotional recognition because of lack of self-reflection, rigidity, and narrow thinking. The person is much in the present with rigidity and inability to see any other perspective. sometimes referred to as concreteness of thought or concrete thinking. 4. Capacity to confabulate is a neuropsychological aspect also. Confabulation refers to someone who uses an old memory or an untrue memory so that it's real, without recognition of the fact at hand. 5. In interpolate here that I do not find that there is any basis in the evidence of the conduct of the accused after the collision, and the circumstances of and leading to the collision for this to apply to the accused.
The accused's counsel returned to Ms Barhon: 1. Asked whether any of the neuropsychological traits identified by Dr McSwiggan manifested in her assessment of the accused, Ms Barhon expressed disagreement with what Dr McSwiggan said regarding the suggestion of Ms Barhon's label of mild neurocognitive impairment. She asserted that the accused was someone with dementia, or someone with significant or severe impairments in their cognition, but someone who has in some domains of cognition, perhaps one a few, modest or mild decline upon objective assessment of their cognition, not manifesting in everyday functioning. This is the basis of the use of the term mild. 2. She did not think his memory was amnestic, and noted that individuals with dementia syndrome, from alcohol or otherwise, may not necessarily be amnestic. There are other forms of dementia, whether the issue might be executive functioning or might be language. There are various different subtypes. 3. Regarding executive functioning in particular, Dr McSwiggan administered only one executive functioning measure in her assessment, upon which it was not substantially below where she expected him to be performing based upon her estimate of pre-morbid functioning. 4. Regarding her assessment of the accused and his executive functioning she performed a much more comprehensive assessment, examining various aspects which a neuropsychological assessment required. She would never reach an opinion about executive functioning on the basis of one test, as contrary to her teaching. On those assessments he performed variably. Some tasks he didn't do as well and other tasks such as on measures of perceptual reasoning or conceptual and flexible thinking he performed within the low average to average range, well within where one would expect and above where she would have expected him to perform. 5. Ms Borhan assessed the accused's neuropsychological capacity other than by administering tests, in her interaction and conversation with the accused, forming her clinical judgment upon observations, the way the accused spoke about things, the way he responded to questions posed. She felt therefrom that his irritability was understandable given the circumstances. He did not want to be at the assessment and did not feel comfortable talking about certain points. This did not necessarily equate to a neuropsychiatric symptom. To make that leap is not necessarily appropriate. In her assessment she would have been looking for other observational features of executive functioning. 6. Asked whether she asked the accused why he was irritated, she responded that he initially spent time explaining that he was frustrated at having to do these different assessments, he was aware he had done a previous assessment and was being made to come back to do another assessment with her. He understood the assessment was to be quite lengthy as explained to him and he became frustrated that it was out of his time to have to attend and take part. 7. Asked whether he presented with a superficial effort she said definitely at the start of the assessment he was quite agitated. She said she saw a broad range of affects demonstrating quite a lot of variability including irritability at times and as calmer and more pleasant at others. She would not say he was necessarily superficial. 8. When asked whether the accused expressed any remorse, in respect of the basic aspects of what had taken place on the day of the collision, she replied that remorse is not necessarily an element of fitness. When discussing the offence that he expressed remorse. 9. When asked whether when discussing the event she assessed his affect in respect of the circumstances of the day to be superficial she said not at the time. He was quite upset and became a little bit distressed talking about his vivid recollection seeing the deceased body and this upset him. They took a few minutes to leave that topic and bring the accused back on track. She would not say that he was superficial or inappropriate in his affect. 10. She did not believe that he attempted to impression manage. 11. She would not say there that was obvious concrete thinking in his presentation. 12. She spoke to the accuses regarding his blood alcohol concentration she believed on both occasions. His response was dismissive, perhaps more uncomfortable talking about it. He recalled there had been blood tests that showed he had alcohol in his system and was quite dismissive of that information. When she brought up the blood tests to look at his blood alcohol level she thought he didn't want to discuss that information because it was uncomfortable for him, thought that he was aware that it was detrimental to his matter, and as such was quite reluctant to talk about it in detail. 13. When asked whether she put to the accused the extent of "the level of recorded intoxication" in the context of her discussion with him about blood alcohol concentration, she said that to the best of her memory she did not think they discussed the exact blood alcohol concentration. 14. She agreed that one way of assessing concrete thinking would have been to challenge him on the evidence of blood alcohol concentration, but it is not unusual for defendants when faced with pieces of damming evidence to not want to accept it. Even if he perhaps had been discussing it in more specific detail and perhaps remained dismissive and said, look, I don't want to talk about it or I don't agree with it, she did not think that refusal to accept that information necessarily equates to lack of awareness of ability to consider it. 15. She accepted that concrete thinking is one of the things that could manifest in neurocognitive decline. 16. Asked whether she was aware that the assessment of the accused was for his capacity to reason through the face of difficult evidence, she responded that there was perhaps a discrepancy here considering that decision making capacity in the civil sense such as the ability to make decisions about finances, is quite a separate issue to fitness with a low threshold and concerns different elements. In this instance, the fact that someone doesn't necessarily want to accept evidence that is contrary to what they're saying, would demonstrate that they have concrete of thought. Considering what followed her evidence, this representation was either misheard by the transcriber or Ms Barhon misspoke. 17. Reasons why someone would choose not to accept a piece of evidence include concern about it would mean, that they might be defensive, prior experience, or environmental factors. It does not necessarily equate to someone's underlying level of cognitive functioning. 18. When asked whether it would have been a far more robust assessment had she specifically challenged the accused on the problematic aspects of the evidence against him, she responded that she did not agree that it necessarily would have resulted in the opinion that he has concrete thinking. There would be other ways to look at his level of ability to reason, his insight, and his forethought. In other aspects of his functioning, he could demonstrate awareness of other elements of his matter, the presence of other evidence and demonstrated a level of reasoning and the ability to reason about other issues. She identified passages from her report of 19 June 2024 for issues upon which the accused could reason, namely, on p 2, that he volunteered he was aware that there had been blood test taken that suggested that he had been drinking alcohol, he could reflect on the issues, that they were going to be adverse to him, and he was aware enough that he could think about the fact he had an extensive drink driving history. He was concerned about the impact his record could have establish a pattern of behaviour. Such factors suggest that he has put thought into it and has chosen to pursue thinking that perhaps another would not take. This does not equate to someone not having the ability to reason. 19. In response to the question that the accused told her he didn't consider himself to be intoxicated with alcohol at the time, she said he wanted to explain that he'd had multiple drinks after the incident and that he felt that had contributed to his level of intoxication. Combined with being aware that he hadn't had much to eat 24 hours prior, when he'd also had other alcohol in his system which perhaps had worn off. she thought it was his choice to mount that defence. 20. She read the Crown Case Statement before she interviewed the accused. She was aware that it included reference to his consumption of two cans of beer after he attended the property. She did not challenge the accused on that. He was adamant with her that he had six cans of beer at that stage of the events. Someone adhering to their assertion did not necessarily reflect concrete thinking, but adherence to their decision. 21. She agreed that in a person who suffers alcohol related brain injury, concrete thinking is consistent with that diagnosis, but it appears that she challenged this with the diagnosis of mild cognitive impairment, which does not affect the accused's day to day activities and is not what is required to meet a diagnosis of mild neurocognitive disorder. 22. Asked to accept the proposition that in a person with a long history of alcohol intake, the symptoms described by Dr McSwiggan for the neuropsychological component, superficiality, irritability, impression management, concreteness of thinking; all are consistent with the kind of neurocognitive decline associated with long term alcohol use, she said, that long term alcohol use produces varied presentations, and one cannot just ascribe a set of symptoms to every person with alcohol related cognitive change. There is variability and other explanations. Such as if someone were to have an overlying mood disturbance, one cannot just attribute it immediately to the effects of a cognitive impairment related to alcohol. Upon the accused's presentation she did not think he had mild neurocognitive disorder which could be attributed to alcohol use, but she was under the impression that he has been experiencing some mood disturbance as a result of the collision and subsequent proceedings. 23. She was asked about the more likely cause of symptoms between mood disturbance and alcohol elated injury. Concrete thinking - it can occur in both, but concrete of thinking she would look more towards the alcohol related neurocognitive condition. Superficiality - definitely a mood disturbance possibly in other conditions such as cognitive impairment. Irritability - most definitely in mood disturbance and conditions such as depression or PTSD or other sort of anxiety stress responses definitely irritability would be a core feature. However, it is possible it could present in someone with cognitive impairment as could a range of symptoms.
The accused's counsel turned to Dr McSwiggan: 1. She confirmed that when she interviewed the accused she saw a degree of superficiality, perceived an irritability, a lack of impression management, and concreteness of thinking. She put to him some of the more challenging aspects of the evidence including his blood alcohol content, and engaged in a separate AVL when those results became available as described in her second report in which she 'vigorously' canvased that specific issue with him. The accused's response began as dismissive. She challenged him, conceptualised it for him, took him to what the reading meant and asked, could he do the same conceptualisation of what level of inebriation the results indicated. The accused was challenged on these aspects and each time at the end he said, "I simply don't believe you, I don't believe the evidence". She asked him could he be wrong about it, and he said, "I am not wrong on that, I can't be wrong about that." This she said was as if hitting a brick wall with no appreciation of the basic, direct objective evidence. He was unable to conceptualise it and when challenged about his belief about it, he had a fixed false belief that it's not true and therefore it did not relate to him and his case. Asked if she had the view that an aspect of that response was related to a desire to avoid responsibility, she said in the face of the evidence avoidance of responsibility could also be an adaptive way of dealing with it, but there would be an explanation rather than just a fixed belief that it is not true. She agreed that his responses to the challenging evidence when put to him vigorously reflected the symptomology seen in a person with alcohol related neurocognitive decline. There is such a poor level of insight and self-awareness whereby the person cannot or does not appreciate or believe the perspectives of someone else because of their rigidity of thinking; they don't self-reflect, and it becomes a brick wall and they will not believe what they are told and are therefore unable to use it any form to reason with it. 2. I interpolate that this and Dr McSwiggan's other opinions including those that follow here regarding the accused's capacities depend upon her limited assessment of him and the veracity of his representations to her given in the less than adequate circumstances of time constraint and audio-visual facility. 3. Dr McSwiggan continued that if one wished to extrapolate, one would see it as a form of delusion, a fixed false belief. Insight can only be tested when has a particular object. One must have insight about a particular thing. It maybe that the accused has a lack of insight about a range of things but unless specifically getting into the decision to be made, here his decision at the moment is his insight around self-awareness, his acceptance of blood alcohol concentration evidence was absent and he cannot reason. She repeated that she put it to him 'very vigorously'.
At transcript page 26 I noted that Dr McSwiggan had not precisely articulated the evidence with which she challenged the accused. She interrupted me to say, "The BAC evidence". I noted the response she attributed to the accused, "I simply don't believe you; I don't believe the evidence." I noted the Crown case statement provides a summary of the evidence the Crown might anticipate that is with some particularity with regard to the events at the location after the crash and said I would be interested to know what particularity was adopted by Dr McSwiggan when she challenged the accused leading to the response she gave a moment before. The accused's counsel then took Dr McSwiggan through portions of her second report where she referred to these topics, including, "In response to questioning about the evidence, Mr Gall repeatedly reported he did not drink to excess before the accident and his BAC results were due to consuming a few drinks after," Asked what questions were posed in this exercise she said, at transcript page 27 line 42, It would have been more around, how do you explain it? How is it going to impact? Why is there? How do you explain that this has got a point to two.
She said "it" was the BAC evidence. She said further with reference to his consumption of alcohol after the event that the accused offered that he had drunk eight to ten drinks afterwards. She challenged him on the two drinks and then pressed him - the number of drinks he described would not fit with the blood alcohol concentration. He then said the BAC evidence was wrong, and he did not accept it.
Dr McSwiggan was asked about those questions she put to the accused and the answers and whether she could explain her confidence that answers and the accused's reasoning was a product of long-term alcohol use and associated neurocognitive decline, she said. There are many types of cognitive disorders or neuropsychiatric disorders that impact on a person's level of awareness. Awareness is fractionated into different levels just sensory processing in the immediacy and right up to the highest level of awareness which is self-awareness or I suppose where people sometimes refer to it as insight, denial, acceptance, appreciation. His rigidity of thinking, his inability - because of that rigidity to self-reflect, to have a level of appreciation of what someone is actually telling them and reflect on that has been disturbed and, therefore, he has a fixed and false belief that can't be shifted because he no longer self reflects his own self or take on board the perspectives of other people to consider the weight of what we're saying and that it is direct and objective evidence. And to weigh all that up and to consider his views, his beliefs around it and his finding that he is no able to that. He is dismissing the perspectives of others. He is not self-reflecting. And he has got a fixed and false belief which is concrete.
I interpolate here that considering the limitations in her approach to the assessment it is reasonable to find that Dr McSwiggan has accepted without sufficient inquiry or analysis the bare assertions she attributes to the accused and to them has applied the learning developed in respect of people afflicted with long term alcohol abuse and consequent mental health and cognitive impairment, without carefully considering inconsistencies in his representations, including those from the more detailed responses elicited by Ms Barhon over a significant period in what I find to have been a thorough process of clinical assessment and testing.
The accused's counsel asked Dr McSwiggan whether she agreed with the opinion expressed by Ms Barhon in her report of 19June 2024 at the end of the paragraph one, that in contrast to her view it arguably makes more sense that his expressed acceptance of such evidence would demonstrate poor reasoning in that it sits in conflict with his intention to go to trial and have such evidence tested, she said, at transcript page 29 line 3: WITNESS MCSWIGGAN: Okay. I suppose in a way what it's saying is, if he expressed an acceptance of the evidence it would demonstrate poor reasoning. WITNESS MCSWIGGAN: No, because it's direct and objective.
In response to other comment in the latest report from Ms Barhon, Dr McSwiggan advanced the following: 1. To the assertion that it is not unusual for defendants not to accept evidence that proves their guilt when they intend to defend the charge particularly during discussions with a third party who will then be writing about such admissions in a report to a Court, Dr McSwiggan did not accept that this is what the accused was doing, because his version is what he's been repeating all along against the direct objective evidence of with a 'huge impact' and implications for his defence. and his decision of his choice of plea. 2. To the question whether she considered that to be a failure in his process of reasoning she replied that when he can't reason about the weight of the evidence it is a failure of reasoning; because he doesn't see it as an important element in terms of coming to his decision. 3. She considered that the accused is unable to understand the substantial effect of that evidence against him.
I considered this comment referable to the accused's responses, not consistent with the attributions given the accused by Ms Barhon. At transcript page 29 line 44, I asked , How can that be so, in light of the evidence? ….
As I sought the evidence to which I wished to refer the accused's counsel asked how it was that she reached that view. Dr McSwiggan replied, WITNESS MCSWIGGAN: In terms of his lack of appreciation. Understanding is comprehending the evidence and appreciating it in relation to your own circumstances.
I said, HIS HONOUR: Can I just ask this, it's not a question of not understanding the evidence, it's a question of - according to what you've told me so far as I understand it, it's a question of accepting that the evidence demonstrates that he had a blood alcohol concentration of a certain level or within range of a certain level at the time he was driving the motor vehicle. That's a different proposition to the one that's being advanced.
Thereupon the accused's counsel offered that his question might have been poorly framed, and added for the witness, When I made reference before to the substantial effect, do you consider it is a situation where Mr Gall is not able to adequately weigh up the impact of that evidence against him in this case?
She replied, yes, and agreed that this was a function of his alcohol related neurocognitive decline. She was then asked, BROADBENT: Do you have a view as to how that lack of reasoning, if I can put it in those terms that you've described, would impact on his capacity to instruct his lawyers? WITNESS MCSWIGGAN: Because he can't appreciate the evidence he's instructing based on the idea that the BAC evidence will not be of any impact to him. So his instructions are discounting the weight of the evidence against him. BROADBENT: Is the inability to understand the weight of the evidence against him a product of concrete thinking? WITNESS MCSWIGGAN: Yes. BROADBENT: And in your view that is a symptom of the neuropsychological aspects of his condition, is that correct? WITNESS MCSWIGGAN: Correct.
The Crown asked questions of the witness from this point on. In response to these Dr McSwiggan offered the following: 1. With regard to confabulation by admitting false memory, his claim of having eight cans of beer versus the two in evidence, could be considered as part of a confabulatory view, but there is no evidence of confabulation in this case. 2. With regard to her more concise method of testing, and the evidence of Ms Barhon that standard practice is for more extensive testing to be conducted for an opinion regarding executive functioning, Dr McSwiggan would not accept this was standard practice. She first observed that executive dysfunction is a broad term and is very difficult to capture on a psychological test because it is high order thinking and contains many components. It is often related to things untestable, specific decisions, specificity of the person's context in life and the difficulty of their daily decisions. Neuropsych (sic) tests capture within a very organised and standardised way sitting in a testing environment whereas executive functions are demonstrated in everyday life in circumstances that are unable to be properly tested. Neuropsych (sic) testing shows when there is gross impairment, but there are subtleties, not always captured in neuropsych (sic) tests. 3. The accused told her he had eight to ten drinks after the collision and before testing and had the belief that the quantity thus consumed would have given the blood alcohol level found on testing.
The Crown turned to Ms Barhon: 1. She said she put to the accused the evidence that he was intoxicated at the time, which explained the aggravated charge of the allegation that he was under the influence of alcohol. 2. He said he had only one schooner at the Colo Hotel on the day of the collision and later six cans of beer which he believed was the cause of his blood alcohol concentration. 3. He did not at that point say that the reading was wrong. He did not say that he had eight to ten drinks after the collision. 4. The Crown referred to the evidence from Dr. McSwiggan when taken to the paper, Decision-Making Capacity Evaluation in Adult Guardianship, a Systematic Review, co-authored by Dr McSwiggan. and the passage that was read to her. In response Ms Barhon agreed that rather looking at one issue it is relevant to look at other decisions the accused made about the evidence in the case.
The Crown returned to Dr McSwiggan: 1. The Crown asked whether the accused's understanding or ability to reason in respect of other parts of the evidence in the case is relevant to the question whether he is able to reason about the blood alcohol content. After an objection to the question for lack of specificity she agreed that it is relevant in determining the accused's fitness that one look at his broader understanding of the case and the evidence against him. 2. She agreed that in determining whether his concrete thinking, in relation to the blood alcohol content evidence is perhaps the result of obstinance or fabrication, or whether a result of neurocognitive impairment, it is relevant to look at his understanding and his reasoning process concerning other aspects of the Crown case. 3. The accused used the CCTV footage depicting him at the Colo Hotel as an element, which I understand to be a reference to a component of the evidence. 4. She conceded the accused was concerned about the use of his history of drink driving against him in the trial. 5. She accepted that this shows in him an understanding of how that evidence in the trial adverse to him might be used. 6. She said the accused's unwillingness to discuss his history of alcohol use was consistent with what is common among those with alcohol use disorders. to underestimate the level of alcohol use and so she sought out an informant for a more objective view. This she said shows an inability to be self‑aware and deliberate in terms of his lifetime of alcohol use. This she suggests is a hallmark feature of people who've had a severe substance use disorder.
The Crown turned back to Ms Barhon: 1. She agreed that the accused's unwillingness to discuss his history of alcohol use is relevant to whether he might be deliberately downplaying his alcohol use on the day of the collision. As Dr McSwiggan pointed out it's not uncommon for people with substance use disorders to under-report the amount of alcohol they are using and is more likely to be the case if they are aware that, in admitting to heavier use, they could implicate themselves somehow. This demonstrates a level of insight. 2. Ms Barhon did not agree that an inability to reason about a particular issue or have insight about particular evidence would be confined to one piece of evidence. If one has concrete thinking it would be expected that there would not be selective choosing of items.
The Crown returned to Dr McSwiggan: 1. Regarding selective insight about evidence or inability to reason about a particular issue, she said that when looking at sort of self‑awareness, must look at a specific object of it - the object of the awareness was the blood alcohol concentration evidence and the object of awareness was the witness statements, that he was inebriated, and the object of evidence was about the alcohol use afterwards. She found the accused to vigorously dismiss the direct and objective evidence, but other evidence was also dismissed, she thought because it was more circumstantial. She did not press that as much as she did the direct and objective evidence. 2. With regard to her use of the term "fixed false belief" she said it is a form of a delusion in the face of all the objective evidence, and the person saying, "no I don't believe it". The belief is fixed because it can't be shifted. She did not think there was any room for error. It is false because it is demonstrably untrue and it's a belief because it's one that they hold and express, with an appreciation of it in relation to their circumstances. It plays into concrete thinking or rigidity of thought. 3. In response to the suggestion that the accused changed his version, referring to the accused telling Ms Barhon he had four to six drinks, she said that this was in terms of how he was remembering what he did on the day and she acknowledged that his recall of what he says he did was not consistent between the two assessments. She agreed that he was not fixed on the amount he had to drink. 4. There followed the exchange at transcript page 38 line 25. CROWN PROSECUTOR: It's more likely that that's a made up version isn't it than a product of his neuro cognitive deficit? WITNESS MCSWIGGAN: Well the making up of versions is the way that the neuro cognitive disability is manifested by just making up things that fits in to fit in or explain even if there's no capacity for him to recognise and reason back, the fact that all people watching him drink. CROWN PROSECUTOR: And there's no way to distinguish that from having simply made up a version that's favourable to him is there? WITNESS MCSWIGGAN: Probably not. CROWN PROSECUTOR: And where it changes it's unlikely to be a fixed false belief isn't it? WITNESS MCSWIGGAN: About the amount of cans he drunk. (as said) CROWN PROSECUTOR: Yes. WITNESS MCSWIGGAN: I would say in terms of the number of cans that's not fixed. In terms of the fact that he said that he created his own level of inebriation after the accident. That would seem to remain fairly fixed between the two of us. CROWN PROSECUTOR: So how do you say it's more likely that he's given versions as a result of his neuro cognitive deficits and that he simply made up some evidence to explain the fact that he had a high blood alcohol reading? WITNESS MCSWIGGAN: I would say that both of them seemed - in a way it's his way of trying to explain what he says as the reason behind this extraordinary high BAC. CROWN PROSECUTOR: And that would amount to a process of reasoning about the high blood alcohol content reading wouldn't it? WITNESS MCSWIGGAN: It would have - the evidence didn't speak to the opposite. CROWN PROSECUTOR: Well even though the evidence speaks to the opposite, the accused is going through a reasoning process about having a high blood alcohol content and needing to provide an explanation isn't he? WITNESS MCSWIGGAN: Yes. CROWN PROSECUTOR: Doesn't he therefore show insight into the effect of the evidence that it could have in this trial? WITNESS MCSWIGGAN: The level of insight when you're, as you said making up evidence, when it doesn't correlate with the objective evidence would demonstrate to me probably not a great level of insight. Because his version would be discounted quite easily by all the witnesses. CROWN PROSECUTOR: You would accept that he is able to give instructions to his lawyers about his version of the events that he wants put before the court isn't it? 1. Dr McSwiggan acknowledged that the accused gave a version to his lawyers but did not "necessarily" agree that he would be able to give instructions whereby he can understand and appreciate what his lawyer is saying to him about the weight of the evidence.
The Crown put questions about the article, Exhibit D, and read passages from it at page 848 (the Crown incorrectly referred to page 838 or was misheard) half way down the second column beneath the heading Understand the substantial effect of evidence. 1. The article specifically refers "Defendants are only required... rudimentary, (I.e.) basic of the evidence against them"? 2. At the end of the paragraph it continued "… the defendant must understand that the prosecution's evidence is averse to them, that the evidence could lead to a finding of guilty and what the evidence generally suggests (e.g. that they were present at the time of the crime that they intended to commit the crime)." 3. Dr McSwiggan did not accept the proposition that the accused understands the evidence of his blood alcohol concentration and that it is averse to him. 4. Upon Ms McSwiggan assessment alone, and even without the more comprehensive consultation by Ms Barhon but especially with it, I find this proposition to be implausible. 5. Dr McSwiggan said, transcript page 40 line 35. WITNESS MCSWIGGAN: Well I suppose if I think about understanding, and this article they speak about understanding as more than just a basis understanding. And that substantial effect is not defined in the legislation that's taken to mean that it could lead to - but it's against him. CROWN PROSECUTOR: I will come to that quote in a moment. Certainly the accused understands that the blood alcohol reading means that he's had a lot to drink? WITNESS MCSWIGGAN: He doesn't accept that that evidence is true. CROWN PROSECUTOR: Is it the case that he doesn't accept that that was his reading at the time of the accident. Or is it the case that he doesn't accept that eight to ten schooners as he told you, eight to ten cans of beer would get him to that level? ….. CROWN PROSECUTOR: I think there may be - there's potentially two issues at play. Is it the case in your opinion that the accused doesn't understand that eight to ten schooners of - eight to ten cans of beer would get him to that blood alcohol level? WITNESS MCSWIGGAN: Would not get him to that blood level, yes. CROWN PROSECUTOR: But that's the accused's explanation for the blood alcohol reading isn't it that he gave to you? WITNESS MCSWIGGAN: Yes. CROWN PROSECUTOR: So he understands that the blood alcohol reading shows that he consumed a significant quantity of alcohol. Is that fair to say? WITNESS MCSWIGGAN: He doesn't accept that the blood alcohol evidence is truthful-- HIS HONOUR: That's a different topic(?). WITNESS MCSWIGGAN: Yes. And then he converts to the idea of then trying to say that - the first part was it was the eight to ten cans and then me saying "it wouldn't get you up to a blood alcohol level of that level". And then the challenging, he said he doesn't believe the point 22. CROWN PROSECUTOR: And he has given some evidence I think - he'd given a version to Ms Barhon, you would accept that he referred to factors such as not having eaten anything and having been animated as having increased his blood alcohol level as well. Do you accept that? WITNESS MCSWIGGAN: Yes. CROWN PROSECUTOR: I propose to be very quick. Not longer than five minutes I'd expect. Doctor if I can take you over to page 849, two third of the way down the second column at page 849 it says "in some the ability to follow the substantial effect of evidence only requires basic abilities. Defendants must understand that the prosecution's evidence is adverse to them and could lead to a finding of guilt for the offences as charged. Defendants must understand generally the substantial effect of the evidence such as whether the evidence implies intent to commit a crime"? WITNESS MCSWIGGAN: Yes. CROWN PROSECUTOR: The fact that the accused doesn't believe the evidence is true doesn't fall within those guidelines does it? WITNESS MCSWIGGAN: He doesn't understand that the prosecution's evidence is going to be adverse to him in terms of that BA, so because he just ..(not transcribable).. CROWN PROSECUTOR: Well it's evidence that he knows it's going to be adverse to him that he's trying to provide explanations for it, innocent explanations isn't it? WITNESS MCSWIGGAN: Yes. Four explanations. CROWN PROSECUTOR: Four explanations albeit, but he's providing explanations and that's evidence that he knows is adverse to him in the trial. Do you agree with that? WITNESS MCSWIGGAN: That there will be alcohol evidence that would be adverse against him. CROWN PROSECUTOR: Yes. WITNESS MCSWIGGAN: He knows that alcohol will be a component of the evidence but it's the BAC, it's the reading that he disbelieves.
This evidence concludes at transcript page 42 line 24.
The Crown went to page 852 of the article about half way down in column 1and the passage, " In sum, the ability to instruct counsel requires that the defendant have the capacity to share their version of what happened and why, whether it is true and why. ….. Those answers however do not need to result in a defence that is good or in their best interests."
Dr McSwiggan noted within the passage that the ability to instruct counsel requires defendant to express an opinion about the evidence, such as whether it is true and why.
The Crown returned to Ms Barhon who, when asked to comment upon this evidence, noted from the article that someone's defence does not have to be in their best interests, it does not have to be what 'we' would consider, or what 'we' would choose as a defence, and this does not make them unfit nor able to instruct. She suggested there is confusion over whether the person must actually admit that the evidence is true. This is not the case as Dr McSwiggan has just said.
Ms Barhon added her comment regarding the term fixed false belief and whether wilful obstinance would suggest a level of adaptation. She said the accused has adapted his response and has demonstrated ability to think about things that would suggest some adaptation of thinking and ability to know, "why I'm going to do it this way or maybe I need to explain myself in another way."
Upon the suggestion that the accused is potentially delusional, she said cognitive impairment would not cause delusions. Were it the case there would be other conditions to consider, such as a major neuro cognitive disorder, mental illness, which is not the case with the accused who has mild changes in his functioning.
The accused's counsel then turned to Dr McSwiggan who confirmed that she did not suggest that the accused was delusional. Her conclusion as to concrete thinking was with regard to critical pieces of evidence and was the product of the alcohol related neurocognitive decline.
As to whether there was scope for an individual presenting with that condition to move away from that kind of concrete thinking she said it is possible.
Her evidence thereafter was confusing, but I understand it and later questions by the accused's counsel to be upon the topic whether the accused might become fit at some point or is burdened hereafter with the asserted affliction.
She referred to delusion not amounting to a delusional disorder or psychosis, and the use of the word as a psychiatric explanation or definition. She went on to speak of what she had seen of remission or changing or the ability to convince someone to appreciate their situation which is commonly done for neuropsychology under medical conditions. She spoke of hospital work, excepting conditions like cancer or heart attack and what 'we' would commonly do, that is, try and represent the information as often as 'we' can, for them to see the perspectives of the person who it trying to explain them, to see whether they can engage in any kind of better self-reflection.
Dr McSwiggan referred to the fact that the accused had the subject evidence for six months, and that upon her assessment of him she does not have a great deal of hope that challenging him further on it will allow him to appreciate that, to quote her: this point to - is a concept that will indeed impact substantially on his implications and the case and his decisions he's making around it.
The accused's counsel next asked whether in her view does what she said materially impact upon any decision the accused might be able to make about the defence upon which he would rely at trial She responded yes and thereafter acknowledged awareness of s. 36(1) Mental Health and Cognitive Impairment Forensic Provisions Act 2020. Her concerns include the accused's ability to decide what defence he will rely on and make that decision known to his legal representative and the Court, and the ability for reasoning underpinning his decisions.
Upon the issue of the permanency of the accused's condition his counsel put questions to Ms Barhon from which she offered the view that considering her diagnosis there is possibility of improvement through time. She said it is the nature of mild neurocognitive impairment that many never progress from there and may stay at that subtle level but some go on to improve, and in this case she thinks it is possible if he abstains.
The accused's counsel addressed Dr McSwiggan who referred to the level of abstinence, and the need for nutrition. Some make gains but for others it is permanent. For the accused, she thought it unlikely that his capacity to decide what defence he might make or understand the weight of the evidence against him is going to improve through time considering he has had the evidence with him for at least six months. If remission were likely it would have occurred by now. To achieve abstinence she said he would probably require a medical withdrawal because he will exhibit the signs and symptoms of severe alcohol withdrawals should he stop from one day to the next. He would require thiamine infusions.
Ms Barhon, said in response she did not necessarily agree with what Dr McSwiggan said. There were multiple elements in what she raised. Someone with extremely severe substance use over an extended period of time, as significant as what Dr McSwiggan suggests, would invariably lead to hospitalisation because they might have developed such as Wernicke encephalopathy with ophthalmological changes, ataxia, and acute states of confusion. These can lead on to a Korsakoff syndrome with major significant cognitive impairments from alcohol use. When someone is extremely impaired, they must be in supported accommodation but there may still be substantial improvement in a number of those individuals. In cases like this, where someone is only presenting with mild changes, improvement is much more likely. Given that the changes to cognition on testing are only modest, there's a much higher likelihood of improvement with abstinence. When someone drinks excessively for a long time, more often than not they will present with Wernicke-Korsakoff encephalopathy to hospital and that usually triggers some indication of substance use issues with alcohol. Over time if it is happening repeatedly and there's no recovery and no treatment this can lead on to a Korsakoff syndrome or Wernicke-Korsakoff syndrome.
Ms Barhon continued, if the accused abstained, there is evidence that individuals with mild cognitive impairment within even short time frames under 12 months can show substantial improvement.
At the conclusion of the evidence, and after discussion and preliminary submissions the proceedings were adjourned for judgement and to allow the parties to prepared written submissions with access to transcript.

The Crown Submissions

The Crown submitted in writing: 1. The opinion of both experts is that the accused meets the diagnostic criteria for severe substance use induced minor/mild neurocognitive disorder. Dr McSwiggan is of the opinion that the accused is not fit to be tried, with no real likelihood that he might become fit within the next 12 months. Ms Barhon is of the opinion that the accused is fit to be tried. 2. The Crown provided background consistent my summary and referred to the relevant provisions of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. including s 36(1) providing for the test for fitness. I agree that the effect of s 36(1) and the effect of s 36(2) is that previous common law considerations remain relevant: R v Presser (1958) VR 45, subsequently affirmed in Kesavarajah v R (1994) 181 CLR 245 ("Kesavarajah"). Smith J said in Presser: "… the question, I consider, is whether the accused, because of mental defect, fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him. 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." 1. Kesavarajah, adds that regard must be had to the length of the trial. In their joint judgement Mason CJ, Toohey and Gaudron JJ stated: In the context of a trial, fitness to be tried is to be determined by reference to the factors mentioned by Smith J in Presser and by reference to the length of the trial. It makes no sense to determine the question of fitness to be tried by reference to the accused's condition immediately prior to the commencement of the trial without having regard to what the accused's condition will or is likely to be during the course of the trial. 1. This is recognised in section 44(5) of the Act. 2. The definitions of mental health impairment and cognitive impairment are set forth in s 4 and s 5 of the Act. 3. The Crown referred to the provisions guiding the court were the accused be unfit, but upon my decision that the accused is not unfit it unnecessary to discuss them. 4. A summary of the reports and the evidence from the neuropsychologists is provided but considering the detail with which I have explored their representations for this judgement I shall make limited reference to the passages identified. 5. Each neuropsychologist conducted interviews with and provided assessment of the accused. Dr McSwiggan conducted her first via AVL for 60 minutes on 31 October 2023, and after service of the pharmacologist's report conducted a further 20-minute interview via AVL on 16 January 2024. Tests were administered during the first interview only. 6. Ms Barhon's interviews and assessment were in person on 20 February 2024 for 3.5 hours (including a 15-minute break), and for a further 75 minutes via AVL on 27 February 2024. 7. The Crown summarised Dr McSwiggan's reports and her conclusions that the accused at the time of the evaluations, on balance, could not satisfy the minimum criteria and accordingly could be considered as unfit. Upon her evaluation, there is no is modification to the processes or assistance to the accused that would facilitate his understanding and effective participation in complex legal proceedings. The Crown referred to her reasons for these conclusions. In her supplementary report after access to the pharmacologist's opinion she maintained her opinions. 8. In her second report Dr McSwiggan's opinion extends to the proposition that the accused demonstrates concrete thinking "that borders on irrational" . She provided her opinion in relation to remission: Mr Gall's cognitive impairment is more likely than not permanent. Some persons can make some modest gains when they cease alcohol and receive adequate nutrition and treatment (Thiamine) for a period of at least seven months (such as the forced remission and food services of custody). Mr Gall is not in this position. There is no real likelihood that Mr Gall will become fit in the next twelve months in my opinion based on the severity of his cognitive impairment, with no real prospect of voluntary remission of alcohol and treatment. 1. Dr McSwiggan did not provide reasons why she is of the view the accused is not one who can improve through abstinence, nutrition, and treatment.
The Crown summarised Dr Barhon's first report: 1. The accused willingly participated but was 'often dismissive and prickly', and at times unwilling to divulge certain information. At times he did not put forth his best efforts, was evasive during discussion about his alcohol use history, suggesting minimisation of his drinking. She provided examples. 2. She suggested the tests by Dr McSwiggan via AVL, might have hampered engagement and performance. 3. Dr McSwiggan's diagnosis should be classified as "severe alcohol use disorder with alcohol-induced mild neurocognitive disorder, persistent". 4. The accused meets the criteria for a mental health impairment upon clinically significant mood disturbance impacting on sleep. Further clinical interview is needed to further explore current symptomatology, he is likely suffering from PTSD after the collision. In partial agreement with Dr McSwiggan, the accused suffers from Alcohol Use Disorder (in early remission) with Alcohol Induced Mild Neurocognitive Disorder. 5. Research generally suggests there can be recovery of some cognitive functioning typically over the first one to two years after the individual abstains. The likelihood and extent of recovery depends on factors including quantities of and duration of alcohol consumption, age, and overall health status. 6. In February 2024, the Accused reported abstinence from alcohol since the collision. 7. Upon balance the accused is fit to be tried. He demonstrated preserved recent memory including key details of the collision, expressed ability to recall and understand the information provided by his legal representatives, and had at least superficial understanding of fundamental aspects of proceedings. He was aware of the charges, plea options, why he intended to plead not guilty, and the significant effect of the likely evidence against him. He demonstrated a limited understanding of some intricacies of legal proceedings (such as his right to challenge jurors)< He could be further educated on these and appeared to understand the concepts when briefly explained in simple terms. 8. There is evidence of a decline in some aspects of cognition, most likely due to long-term effects of sustained heavy alcohol use. The level of decline was insufficient to render him unfit to plead or stand trial. Modifications could facilitate his participation, with a support person including his legal representatives from whom to seek clarification or repetition of information when necessary, with regular rest breaks (every hour) to confer. She referred to mild hearing loss. 9. Ms Barhon addressed the fitness criteria in detail and said refusal to accept the evidence of intoxication beyond one schooner of beer at the time of the collision, which would implicate him if he acknowledged it, did not equate to an inability to reason. Despite low performance on several formal cognitive tasks, based upon all the information available he could make a defence and answer the charge, with support from his legal representation.
The Crown summarised her first supplementary report after consultation on 5 June 2024, provided in response to Dr McSwiggan's neuropsychological test data. Ms Barhon concluded that the results do not alter her opinion.
The Crown summarised Dr McSwiggan's second supplementary report of 11 June 2024, and challenges her assertion that the accused's version was not evidence of reasoning. 1. His view of the evidence was it had little no importance for his case, and he gave it little to no weight when considering his decision. His reasoning was impacted by impaired insight and his responses showed failure to accept or believe the evidence. His denial of the blood alcohol concentration results showed his beliefs surpassed wilful obstinance. 2. In summary, the effects of alcohol related brain damage left the accused unable to understand the substantial effect of the evidence against him, which has more likely than not resulted in his choice of defence, without comprehending its impact or implications.
The Crown summarised Ms Barhon's second supplementary report of 19 June 2024: 1. She disagreed with the conclusion that the accused's reasoning is impacted by impaired insight and does not align with the requirements of fitness. 2. For 'key pieces of evidence' (such as his criminal history for drink driving and CCTV footage of him at the Colo Pub) the accused did not demonstrate problems with reasoning and insight; this demonstrates insight and capacity to reason about his circumstances. 3. It is not unusual for individuals with alcohol issues to underreport consumption and become defensive and reluctant to discuss their use, as was the case with the Accused. 4. It is standard practice for more extensive testing than performed by Dr McSwiggan for an opinion about executive functioning.
The Crown made submissions upon oral evidence from Dr McSwiggan. 1. The experts agreed that the accused met the diagnostic criteria for substance use induced mild/minor neurocognitive disorder; that there was not an "amnestic" quality to the accused's memory, that if there was to be improvement in the accused's condition, it would be expected to be within 12 months. 2. Dr McSwiggan gave evidence about "reasoning" to which I referred earlier found at transcript 4.44-15.12. 3. The Crown noted her evidence about "concreteness of thinking" at transcript 16-17. 4. The Crown noted that Dr McSwiggan said she vigorously canvassed the blood alcohol concentration with the accused at transcript 25.15 and referred to her further evidence at transcript page 26.16-39. 5. The Crown noted that Dr McSwiggan gave evidence about the accused's purported consumption after the collision at transcript 28.12-16. 6. The Crown noted the evidence by Dr McSwiggan dealing with some of Ms Barhon's report -transcript 28.50 - 29. 7. The Crown noted Dr McSwiggan's opinion that the accused's "lack of reasoning" would impact his ability to instruct his lawyers: transcript 30.20-27; and cross examination at transcript 32.33-44. 8. The Crown noted her evidence regarding the broader aspects of the Crown case: transcript 35.4-38 and 38.25-36. 9. Dr McSwiggan accepted that the accused reasoned about having a high blood alcohol concentration and needed an explanation for it: transcript 39.18; and gave evidence about insight and the ability to give instructions: WITNESS MCSWIGGAN: The level of insight when you're, as you said making up evidence, when it doesn't correlate with the objective evidence would demonstrate to me probably not a great level of insight. Because his version would be discounted quite easily by all the witnesses. CROWN PROSECUTOR: You would accept that he is able to give instructions to his lawyers about his version of the events that he wants put before the court isn't it? WITNESS MCSWIGGAN: He gave a version but I don't necessarily agree that he would be able to give instructions whereby he can understand and appreciate what his lawyer is even saying to him about the weight of the evidence? 1. The Crown noted her evidence relevant to section 36(1)(i) of the Act (TT45.5-10): BROADBENT: Having regard to section 36(1)(i), that is decide what defence the person will rely on and make that decision known to the person's legal representative and the Court. The concern that you have is in relation to the decision, correct? WITNESS MCSWIGGAN: The reasoning underpinning the decision.
The Crown addressed the oral evidence of Ms Barhon. 1. At transcript 19.10-38, after reflecting on the time spent with him, she said if there was concreteness of thinking and reluctance to discuss blood alcohol concentration evidence it was not an obvious feature of his presentation. 2. He was dismissive of his blood alcohol content as a topic with which he perhaps uncomfortable. He was quite agitated; he remembered there were blood tests that had showed that he had alcohol in his system and he was dismissive of it. 3. With reference to her report she said that when he brought up that there had been some blood tests done to look at his blood alcohol level he didn't want to discuss it because it was uncomfortable for him. She thought him aware it was detrimental to him and he was quite reluctant to talk about it in detail. 4. Reasons why a person might not accept evidence include concern about what the admission would mean, they might be in a defensive state, it might be prior experience, it could be environmental factors. She said there is a number of reasons not necessarily equating to someone's underlying level of cognitive functioning: transcript 21.14-19. 5. Upon whether it would be preferable to have been more robust with the accused regarding problematic aspects of the evidence, at transcript 21.21-22.15. she did not agree that it would have resulted in the opinion that the accused has concrete thinking. There were other ways to consider his ability to reason, his insight, and forethought. In other aspects of his functioning, he demonstrated awareness of other elements of his matter, the presence of other evidence, and the ability to reason about other issues. For example he volunteered that he was aware that there was blood taste taken that suggested that he had been drinking alcohol. He could reflect on some of the issues, that they were averse to him and he was sufficiently aware to think about his extensive drink driving history. This suggests he has considered them and has chosen a line of thinking that perhaps others would not take but that does not equate to someone not having the ability to reason. 6. He wanted to explain that he'd had multiple drinks after the collision and felt that is what had contributed to his level of intoxication. Combined with awareness that he had not eaten much for 24 hours beforehand and had other alcohol in this system, which perhaps had worn off, it was his choice to make such a defence. 7. At transcript 32.46-33.37 she referred to the aggravated component of the charge he faces, and that when challenged that related to the allegation he was intoxicated at the time of the collision he said he was not drunk because otherwise he would not have stopped. Her memory was that she put to him the evidence that he was intoxicated at the time, which explained the aggravated charge. He said he had only one schooner at the Colo pub and after the collision consumed six cans of beer which explained his blood alcohol concentration. He did not say to her that the reading was wrong. 8. An inability to reason would not be confined to one piece of evidence: transcript 36.44-37.3 9. Ms Barhon was asked whether she would expect inability to reason would be confined to one piece of evidence: transcript 36.44-37.3. If someone has concrete thinking there would be no choosing between items of evidence.
The Crown submissions then dealt with the likelihood of improvement which I need not discuss considering my finding that the accused is fit for trial.
I agree with the Crown's submissions that I would find on the balance of probabilities that the accused is fit to be tried for the reasons offered, namely, 1. The evidence demonstrates that it is more likely than not that the accused can understand the substantial effect of the evidence to be given against him; 2. Can make a defence and answer the charge; 3. Can instruct his legal representatives to mount a particular defence and provide a version of facts accordingly; and 4. Can decide what defence to rely upon and make that known to his legal representatives and the Court.
I find that the accused demonstrated insight into the effect of various pieces of evidence in the case, including an understanding of the adverse effects of the evidence for him, and provide his version of events in reply.
I agree that accused's explanations for the blood alcohol concentration made on separate occasions do not demonstrate 'concrete reasoning', as the term was explained by the expert witnesses. His version changed when repeated on different occasions, initially telling Ms Barhon he had one schooner at the Colo Pub, then stating that he later had four to six XXXX gold cans, which he asserted explains the blood alcohol concentration, later telling Dr McSwiggan that he had eight to ten drinks after the collision and that the blood alcohol concentration reading was wrong.
I agree with the submission that the accused's provision of reasons and excuses to explain the blood alcohol concentration demonstrates insight and understanding that the evidence is averse to him and would be used to demonstrate that he was intoxicated at the time of the collision, unless it could be explained by consumption of alcohol after the collision.
I agree with the submission upon the accused's acknowledgement other evidence of alcohol use would be expected in the trial, including the CCTV footage from the Colo pub prior to the collision, and his drink driving history.
I find that the accused understands the adverse nature of the blood alcohol concentration and the effect it will have against his assertion that he was not intoxicated at the time of the collision and showing that his differing versions of how much alcohol he consumed between the time of the collision and the blood alcohol testing were a deliberate attempt to provide an alternative explanation for the evidence.
I do not accept that he is unable to understand the substantial effect of the evidence or provide instructions to his legal representative due to cognitive impairment.

The Accused's Submissions

The accused submitted in writing.
These provide an uncontroversial summary of the events leading to the collision, the investigation that followed, and the accused's prosecution. They provide a summary of the evidence on behalf of the accused. All of this is consistent with what I have provided hereinbefore.
The submissions acknowledge that the Crown has accurately set out the relevant provisions of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 and primary common law principles applicable when determining whether a person is fit to be tried.
The key areas of dispute between the experts are noted, in particular the accused's capacity to meet the following criteria from s 36(1) of the Act: 1. To understand the substantial effect of any evidence given against the person: s 36(1)(f) • 2. To make a defence or answer to the charge: s 36(1)(g) • 3. Instruct his legal representative so as to mount a defence and provide his version of the facts to that legal representative and to the court if necessary: s 36(1)(h) • 4. Decide what defence he will rely on and make that decision known to the person's legal representative and the court: s 36(1)(i).
The submissions note that the issue revolves around the accused's understanding and appreciation of the significant blood alcohol concentration.
The submissions acknowledged correctly that the test for fitness does not require perfection, nor complete understanding of the proceedings or that the accused necessarily be able to understand the applicable law, and a person cannot escape trial simply by establishing that they have low intelligence: Roberts v R [2023] NSWCCA 187 at [17].
Whether the accused is legally represented may also be relevant to the assessment of his ability to sufficiently understand the proceedings. The tests "may not be very difficult to meet": Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29 at [298] per Hayne J.
Roberts v R ibid is also cited for the proposition that the criminal justice system is called upon hear matters concerning people with mental disorders, abnormalities, or delusions, which may be severe, and such conditions do not per se prevent an accused from being brought to trial. A mental disorder as defined in the Act may cause an accused to conduct a defence in a manner which the court considers to be contrary to their best interests but this does not of itself mean they are unfit: Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29 at [24]-[27] per Gleeson CJ; R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7 at [298]-[302]. 23.
The accused submits that the question of fitness here turns less upon whether any decision about the blood alcohol concentration evidence might be against the accused's best interests, and more upon whether the accused can understand the substantial effect of that evidence.
The accused submits that evidence relevant to his reasoning process about the blood alcohol concentration is the critical feature in this instance.
The submissions address Dr McSwiggan's evidence that the accused exhibited symptoms characteristic of a person with alcohol-related neurocognitive decline. She differentiated between cognitive aspects and neuropsychiatric aspects and agreed that she observed a degree of superficiality, irritability, impression management, and concreteness of thinking in him. His rigidity of thought was demonstrated in responses to her 'vigorous' challenge regarding the blood alcohol concentration evidence and she concluded that his inability to conceptualise the evidence reflected his alcohol related neurocognitive decline.
The submissions note that Ms Barhon did not agree that the accused exhibited concreteness of thinking or a superficial affect and attributed any irritability to his frustration from not wanting to undertake the assessment. Nonetheless, Ms Barhon did not think he deliberately exaggerated or feigned memory impairment, but he was "not really applying himself".
The accused submits that the Court would accept Dr McSwiggan's evidence over that of Ms Barhon on this issue, because of Dr McSwiggan's extensive experience assessing and evaluating individuals suffering from alcohol related neurocognitive disorders, and second, because Ms Barhon did not directly challenge Mr Gall on the blood alcohol concentration results, which is a critical plank of the Crown case and a significant piece of evidence, especially in the context of the assessment of his reasoning capacity. Moreover, Ms Barhon accepted that concrete thinking "can be" consistent with a diagnosis of alcohol-related brain injury although she qualified this with her finding that the accused suffered mild cognitive impairment.
I do not accept that I should prefer the opinions of Dr McSwiggan as I shall explain hereunder.
Dr McSwiggan explained that neuropsychological tests do not always capture subtleties and, other than indicating whether a person is mildly, moderately, or severely impaired, cognitive testing does not make any predictions in terms of someone's capacity.
Dr McSwiggan devoted her second assessment to challenging him on the blood alcohol concentration evidence.
The accused submits that the Court would have difficulty accepting Ms Barhon's evidence that because there were other aspects of the evidence about which the accused was able to respond, it could not be concluded that the failure to reason through the blood alcohol concentration evidence was a significant indicator of unfitness. She referred to his awareness of the blood test results and that his criminal history may operate against him. The accused submits that this awareness does not demonstrate reasoning as explained by Dr McSwiggan, namely, the ability to consider elements to a decision, weigh those elements, and appreciate their importance.
I do not accept this submission.
Ms Barhon accepted the distinction between someone offering a reason and the reasoning process behind their decision.
Dr McSwiggan considered that concrete thinking is a neuropsychological aspect of the condition. Ms Barhon was asked questions about this at transcript 23.15: WITNESS BARHON: I do think that he has, as I said, mild neurocognitive disorder which could be attributed to his alcohol use. But I also am under the impression as I indicated in my report that he has been experiencing some mood disturbance as a result of the offence and subsequent legal matter. BROADBENT: In your clinical view, which is more likely the cause of those symptoms? WITNESS BARHON: Well, which symptom? BROADBENT: Concreteness of thinking. WITNESS BARHON: I would say concreteness of thinking can occur in both but in this instance, concrete of thinking, I would be looking more towards the alcohol related neurocognitive condition.
The submissions include that it would be open to the Court to find that the accused is impaired with respect to at least 4 of the criteria, namely s 36(1)(f)-(i) of the Act. The accused does not contend that an accused would be found unfit whenever they do not wish to accept a piece of evidence which conflicts with their intended defence, as was expressed by Ms Barhon. However, the question is whether the accused fails to satisfy one or more of the criteria for fitness under that provision. The fitness criteria reflect minimum standards, the purpose to ensure effective participation by an accused in their trial: R v Maxwell [2023] NSWSC 1189 at [91] (Yehia J).
The accused submits relying on Dr McSwiggan's evidence, that the accused's inability to evaluate the substantial effect of the blood alcohol concentration evidence and provide instructions which reflect an understanding of the weight of the evidence against him would lead the Court to conclude that he is impaired in his ability to understand the substantial effect of the evidence, instruct his lawyers to mount a defence and decide what defence to rely on.
I do not accept that the evidence allows a finding that he has an inability to evaluate the substantial effect of the blood alcohol concentration evidence.
The accused submits that the specific circumstances of this matter require close consideration in determining whether the accused's ability to meet any of the criterion in s 36(1) of the Act is impaired, noting that: 1. It is agreed he has a diagnosis of alcohol induced mild neurocognitive disorder; 2. Some of his symptoms include irritability, superficiality, concreteness of thought, and lack of impression management, and that these are related to his condition; 3. The blood alcohol concentration evidence is objectively overwhelming evidence that at the time of the collision the accused was substantially affected by alcohol; • 4. The accused was adamant in instructions that he was not affected by alcohol at the time of the collision and when challenged on the evidence says that he does not believe it and it must be wrong.
Dr McSwiggan states: Based on my previous evaluation, Mr Gall demonstrated grossly impaired insight in relation to the substantial impact of the evidence as a result of his inability to accept or believe the feedback he was given in order to consider alternative perspectives. In addition to his distorted, pathological capacity for self-reflection, his responses showed a failure to accept or believe the evidence (BAC) and that he "can't be wrong" about this. His denial of the BAC results showed his beliefs surpassed wilful obstinance.
The accused submits that Ms Barhon's formulation that the accused's attitude demonstrates mere refusal to accept the evidence should not be accepted. Considering that Ms Barhon did not challenge the accused upon the strengths of his belief or the reasons for it, it is difficult to see how she could reach such a robust view of the accused's reasoning. Conversely, Dr McSwiggan challenge him on the evidence of blood alcohol concentration and the consumption of alcohol after the fact.
Regardless of the contrast drawn, upon the more comprehensive approach by Ms Barhon to the assessment of the accused l accept her opinion on this.
The accused submits that on balance, he cannot be said to 'understand' the substantial effect of the evidence if, by reason of a neuropsychological symptom of his condition, he does not believe it or is ultimately of the view that the evidence is "wrong". This was of significance to Dr McSwiggan because the blood alcohol evidence was 'direct and objective' evidence rather than circumstantial. While a 'rudimentary' understanding may be sufficient to satisfy s 36(1)(f) and acknowledging that the accused need not have the ability to undertake a detailed and intelligent analysis of the prosecution case: R v Dellamarta [2020] VSC 745 at [84], he submits that an understanding must involve more than mere awareness of the existence of evidence. As Dr McSwiggan points out, understanding involves comprehending the evidence and appreciating it in relation to the particular circumstances. The evidence related to the blood alcohol concentration is neither complex, nor esoteric. Despite its simplicity, however, Dr McSwiggan is of the view that the accused has difficulties with the appreciation element, noting that difficulties with higher order thinking are common symptoms associated with his condition.
I do not accept this proposition. I find that the accused has in his responses to both experts that he understands the evidence and appreciates its effect.
The accused submits that the words 'substantial effect' used in s 36(1)(f) of the Act imply some more significant understanding. Where, as in this case, the blood alcohol concentration evidence appears overwhelming, the accused's inability to reason in relation to it in particular reveals lack of capacity to understand the 'substantial effect' of evidence given against him. The fact that the accused could comprehend that there was other evidence adverse to him does not diminish this proposition, given the overwhelming significance of the blood alcohol concentration evidence.
I do not accept this submission.
Moreover, Dr McSwiggan's concern about the accused's process of reasoning regarding the blood alcohol concentration evidence means that in her view his capacity to decide what defence to rely upon under s 36(1)(i) of the Act is also impaired. In the absence of any thorough assessment or consideration by Ms Barhon of the accused's decision-making capacity, the accused submits the Court would prefer Dr McSwiggan on this aspect.
The submissions proceed with the question of permanence but since I find that the accused is fit for trial I do not intend to address them on this point.
If the Court finds the accused fit for trial, an order should be made remitting the matter to a Magistrate for the holding of a case conference under Division 5 of Part 2 of Chapter 3, Criminal Procedure Act 1986: s 52(2) Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

Consideration

I question the reliability of Mr Marks' evidence of the accused's incapacity considering the history he provides none of which extended to limit the accused's opportunities to drive of which Mr Marks must have been aware through their close association.
I do not accept that the accused's denial wrong doing and assertions that he had not been drinking before the crash, apart from one schooner of beer, in the face of compelling evidence to the contrary is of itself sufficient basis upon which to find that he is unfit for trial. I have weighed the opinion of Dr McSwiggan offered to explain the accused's response to the evidence. Implicit in the opinions advanced on the accused's behalf is the proposition that he believes his version of events to explain his blood alcohol concentration, upon which he rejects the cogent evidence against him because of his concrete thinking as opined by Dr McSwiggan. I do not accept this considering the events described by the witnesses who saw him and interacted with him after the collision, and his explanations for the collision including that the deceased came into his path notwithstanding the accused's progress along the roadway to the point of the collision.
Contrary to what is said of the accused by those speaking for him, and Dr McSwiggan, rather than not having an adequate understanding of the case against him and the evidence available to the Crown to prove it, I find that his utterances in the representations attributed to him by Dr McSwiggan and Ms Barhon reveal that he understands the case against him to be that he consumed a large amount of alcohol before the collision, but denies that he did so, asserting that his intoxication was from his consumption afterward, and that the witnesses who say otherwise are wrong. This does not persuade me that he is unfit for trial.
The first assessment by Dr McSwiggan was via audio visual link and for one hour only. This was for clinical assessment and limited testing. Notwithstanding the confidence with which Dr McSwiggan relies upon her seniority and skill gained in practice over the years, I am not persuaded by her asserted capacity to focus upon what she perceived to be an adequate level of testing and sufficient enquiry of the accused for her assessment. This is not to suggest that Dr McSwiggan has not faithfully described her perception of the test results, but considering the circumstances in which they were administered in what I find to be less time than appropriate, I am circumspect about the opinions offered upon them.
I am not persuaded that the limitations which Dr McSwiggan observed provided sufficient scope to properly assess the accused's fitness. In conjunction with the time constraints the use of an audio-visual facility must have had some limiting impact, in contrast to the in-person consultation undertaken by Ms Barhon over the longer period with a broader range of psychometric testing administered. Dr McSwiggan it would seem accepted the representations by the accused and Mr Marks without exploring further, in contrast to Ms Barhon who asked for further information from the accused testing the reliability of his initial representations to her.
The reliability of the clinical assessment by Dr McSwiggan must depend upon the veracity of the representations she attributed to the accused. His assertion that he did not take drinks before the collision that contributed to his blood alcohol concentration, and his representations that the blood alcohol concentration arose from his consumption of beer after the collision, gives rise to incongruity because of inconsistency between the argument that he is so burdened from long term alcohol use causing symptoms limiting his capacity to participate in his proceedings, and his representations asserting his innocence that the blood alcohol level, whatever it might be, was the product of drinks consumed after the collision.
The first supplementary report by Dr McSwiggan provided on 6 January 2024 was once again via audio visual ling for 20 minutes only, again providing but limited opportunity for the assessment sought.
The history gleaned by Ms Borhan indicates a level of competence in the accused above the observations by Dr McSwiggan, Mr Marks, and Ms McCarthy.
I agree with Ms Borhan's observation that since the accused could demonstrate the capacity to reason and think flexibly on testing, despite variability across performances, his refusal to accept the evidence that he was intoxicated with alcohol beyond one schooner of beer at the time of the incident - which would implicate himself as guilty if he did acknowledge this fact - does not equate to an inability to reason.
I am not persuaded to accept the opinions expressed by Dr McSwiggan that the accused is unfit for trial.

Decision

I agree with the Crown's submission that upon the balance of probabilities the opinion offered by Ms Barhon should be accepted and that the accused is not unfit for trial upon consideration of the criteria set forth in s 36(1) Mental Health and Cognitive Impairment Forensic Provisions Act 2020.
Specifically, I find that though by reason of the accused's misuse of alcohol throughout a substantial period of his life, whereupon he was found by neuropsychologists Dr Sally McSwiggan and Ms Lucienne Barhon to suffer a mental health impairment and cognitive impairment, upon the cognitive testing administered and the comprehensive clinical assessment by Ms Barhon I find that he has demonstrated capacity: 1. To understand the offences the subject of the proceedings, 2. To plead to the charges, 3. With the assistance of his lawyers, to exercise the right to challenge jurors, 4. To understand generally the nature of the proceedings as an inquiry into whether he committed the offences with which he is charged, 5. To follow the course of the proceedings so as to understand what is going on in a general sense, 6. To understand the substantial effect of any evidence given against him, 7. To make a defence or answer to the charges, 8. To instruct his legal representative so as to mount a defence and provide his version of the facts to his representative and to the court if necessary, 9. To decide what defence he will rely on and make that decision known to his and the court.
I find there are no other grounds upon which the accused might be considered as unfit to be tried for the offences.
Ms Barhon accepts that there are challenges for the accused, but with appropriate arrangements, including a support person such as Mr Marks, to assist as might be required, together with his solicitor and counsel, he can participate in the proceedings in accordance with the above criteria.
I have considered the likely length and complexity trial, drawing upon the Crown Case Statement.
Upon representations attributed to the accused in the clinical assessments made by the neuropsychologists, as contemplated by s 44 Mental Health and Cognitive Impairment Forensic Provisions Act 2020, with appropriate modification of the trial process, if necessary, will facilitate the accused's understanding and effective participation in the trial.

Amendments 30 July 2024 - License plate redacted, full name taken out of title and other small formatting issues fixed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 July 2024

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