R v Sutherland [2012] ACTSC 62

Human Rights Act 2004 (ACT), s 21

Crimes Act 1900 (ACT), ss 20, 24, 26, 311, 312, 314, 315, div 13.2

Court Procedures Rules 2006 (ACT), rr 4733, 4735

Barnett, M., et al, "Psychological and Ethical Issues in the Relationship between Lawyers and Mentally Ill Clients" (2007) 11 University of Western Sydney Law Review 63

Ierace, M., Intellectual Disability: A Manual for Criminal Lawyers (Redfern Legal Centre, 1989)

R v Dashwood [1943] KB 1

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

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

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

Egan v JG [2010] ACTSC 53

Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889; [2003] 3 All ER 162

Dalle-Molle v Manos [2004] SASC 102; (2004) 88 SASR 193

R v Monaghan (No 2) [2011] ACTSC 62

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

Russell v HM Lord Advocate [1946] SC(J) 37

R v Podola [1960] 1 QB 325

R v Drummond (Unreported, NSW Court of Criminal Appeal, Gleeson CJ, Grove and Newman JJ, 27 May 1994)

R v Richards (1994) 64 SASR 42

R v Griffith [2008] ACTSC 77

Tasmania v Bosworth [2005] TASSC 29; (2005) 153 A Crim R 278

R v Ey [2011] SASC 145; (2011) 110 SASR 476

IN THE SUPREME COURT OF THE ) SCC No. 198 of 2008

AUSTRALIAN CAPITAL TERRITORY ) SCC No. 319 of 2010

1. Matthew James Sutherland is not unfit to plead.

2. The prosecution draw the reasons for this order to the attention of the trial judge so that appropriate special measures can be implemented at trial to ensure that, having regard to the mental impairment of Matthew James Sutherland, a fair trial is ensured.

1. A fair trial is an essential part of a civilised society. It is also a right to which every person is entitled. In this jurisdiction, that is now mandated by s 21 of the Human Rights Act 2004 (ACT).

2. One of the essential characteristics of a fair trial is that the accused has the mental capacity to defend himself or herself, reaching minimum standards of capacity to understand and participate in the trial process. See R v Dashwood [1943] KB 1 at 4;

R v Presser [1958] VicRp 9; [1958] VR 45 at 48.

3. Matthew James Sutherland has been committed for trial on a number of charges. A question has arisen about his fitness to plead and, unless he is not found unfit to plead, a trial, as it is usually understood, cannot be conducted.

4. Mr Sutherland had been committed for trial in respect of eleven offences. An indictment has been filed, charging him with causing damage to a building in Hackett, ACT, on 10 March 2008, contrary to s 403(1) of the Criminal Code 2002 (ACT), and of causing damage by fire to the same building on the same day, a charge commonly known as arson, contrary to s 404(1) of the Criminal Code. In summary, the allegation is that Mr Sutherland broke a window to get into the building and once inside, set fire to white linen curtains inside the building.

5. In respect of the other charges, Mr Sutherland has been committed for trial, however, no indictment has yet been filed. There are three sets of charges as follows:

(1) A series of charges arose out of what was alleged to have been violent interactions between Mr Sutherland and his partner and her child. On 4 September 2008, Mr Sutherland's partner called police and she and her child were taken to Calvary Hospital. It was alleged that they had been assaulted by Mr Sutherland and two charges of common assault under s 26 of the Crimes Act 1900 (ACT) were preferred against Mr Sutherland. While Mr Sutherland's partner's child was in hospital, investigations suggested that he had suffered eight metaphyseal fractures over the past several weeks. Mr Sutherland was charged with recklessly inflicting grievous bodily harm on the child between 29 July and 4 September 2008, an offence against s 20 of the Crimes Act. An alternative charge of assault occasioning actual bodily harm under s 24 of the Crimes Act was also laid. Later, when interviewing Mr Sutherland's partner, police noticed a large bruise on her face. She went to Calvary Hospital and was diagnosed with a fractured eye socket said to have been inflicted by Mr Sutherland. As a result, Mr Sutherland was charged with recklessly inflicting grievous bodily harm and, alternatively, assault occasioning actual bodily harm.

(2) Mr Sutherland has also been committed for trial on a charge of assault occasioning actual bodily harm alleged to have been committed on 15 May 2009. The complainant is another male, but otherwise I have no details about this incident.

(3) On 2 August 2010, Mr Sutherland was at the home of his parents when an argument commenced. Mr Sutherland is alleged to have become very angry and smashed a chair on the floor causing two of the legs to break off. Shortly after that, his brother arrived and, being unable to calm the situation down, rang the police. Mr Sutherland is alleged to have gone to the phone where his brother was calling the police and pulled the telephone cable out of the wall, causing damage to the wall socket and fixed wiring. As a result, Mr Sutherland was charged with two counts of damage to property, contrary to s 403(1) of the Criminal Code.

6. On the first set of charges, alleged to have occurred on 10 March 2008, Mr Sutherland was arrested and charged on 11 March 2008. He appeared later that day in the Magistrates Court and was remanded in custody. On 23 May 2008, he was committed to this Court for trial.

7. He appeared on 5 June 2008, when the usual directions were given under r 4733 of the Court Procedures Rules 2006 (ACT). On 27 June 2008, he was granted bail.

8. It was not until 29 October 2008 that there was any reference to a mental health issue. On 13 November 2008, at the pre-arraignment hearing under r 4735 of the Court Procedures Rules, the question was directly raised that there may be an issue as to Mr Sutherland's fitness to plead. No steps seem to have been taken until 5 March 2009, when the Registrar directed that the matter be referred to a judge for appropriate orders under s 314 of the Crimes Act.

9. On 12 March 2009, I heard the matter, was satisfied that there was a real and substantial question about Mr Sutherland's fitness to plead and reserved the question for investigation. I then made orders under s 315 of the Crimes Act requiring Mr Sutherland to be examined by a psychiatrist for the purpose of a report being prepared as to his fitness to plead.

10. There was some delay in obtaining reports, especially as the psychiatrist who had been asked to examine Mr Sutherland sought to have psychometric testing conducted. I further ordered, also under s 315 of the Crimes Act, that such testing be conducted.

11. In the meantime, Mr Sutherland was charged on 1 October 2008 with two further offences, being the first two of the offences referred to at [5](1) above. He appeared in the Magistrates Court on 2 October 2008 and bail was refused. The balance of offences in that series were laid on his second appearance in that Court on 15 October 2008. After a number of adjournments he was committed for trial on 30 January 2009 in respect of these charges. He appeared in this Court on 12 February 2009, and the two sets of proceedings were directed to be heard together.

12. The hearing as to Mr Sutherland's fitness to plead was commenced on 9 September 2010. I received the following reports:

Exhibit A: Four reports from Dr Graeme George, Consultant Psychiatrist, dated

8 January 2009, 28 April 2009, 9 July 2009 and 26 March 2010.

Exhibit B: Report of Ms Jolene Cravino and Mr Keith E Smith, Forensic Psychologists, dated 2 July 2002.

Exhibit C: Report of Ms Kylie Betts and Ms Juanita Smith, Psychologists, dated 18 November 2009, with results of psychometric evaluation of Mr Sutherland.

Exhibit D: Report of Dr Stephen H Allnutt, Senior Consultant Forensic Psychiatrist, dated 3 August 2010.

13. The two psychiatrists were cross-examined by both parties. At the end of proceedings, I agreed to permit written submissions to be filed by the parties. These were subsequently received and I reserved my decision.

14. In respect to the charges of August 2010 (set out at [5](3) above), Mr Sutherland was arrested on 2 August 2010 and appeared in the Magistrates Court the next day. He was remanded in custody. On 15 September 2010, he was committed for trial to this Court on those charges and bail was granted. When he appeared in this Court on 30 September 2010, it was agreed that the inquiry into Mr Sutherland's fitness to plead would include these charges.

15. As to the charge of 15 May 2009 (referred to in [5](2) above), Mr Sutherland was summonsed on 29 September 2010 to appear in the Magistrates Court on 2 November 2010. He did so, and on 5 May 2011 was committed to this Court for trial on these charges. Bail was granted. When Mr Sutherland first appeared in this Court in respect of these charges on 16 June 2011, it was also agreed that consideration of his fitness to plead would include these charges.

16. Despite the cross-examination of the two psychiatrists, the factual background to Mr Sutherland's personal history was not in dispute.

17. Mr Sutherland was born in 1986 in Canberra, the youngest of his parents' three children. He did not get on well with his older brother, with whom he fought, sometimes physically, but he did get on well with his older sister. His relationship with his brother has improved a little. His family environment was loving, though he was closer to his mother than his father, with whom there was some conflict.

18. He went to various Canberra primary schools, attending mainstream classes but needing additional help. He struggled with his education, however, from Year 4 onwards. He said he enjoyed science and was ambivalent about maths but found spelling and reading very difficult. He went to the Woden Special School but left in Year 7 and then attended the Eclipse Program at Galilee.

19. He has had some employment. The longest job he has had was in the cleaning industry where he worked for about two years. He managed that reasonably well. He has also worked in landscaping and as a labourer for a bricklayer but has difficulty, forgetting what he has to do unless it is done straight away. He likes working with his hands and is interested in cars and mechanics.

20. Mr Sutherland has been diagnosed with neurofibromatosis, a neurocutaneous disease associated with skin lesions, brain lesions, learning difficulties and a mild intellectual handicap. It has led to social problems for him and it results in him becoming easily agitated. It is also associated with short-term memory loss. His mother has also been diagnosed with neurofibromatosis.

22. He has had a long-term relationship since about mid 2007 and a child was born to him and his partner. They are the complainants in some of these offences. This child has been in the charge of Care and Protection Services of the ACT Office for Children and Youth and Family Support.

23. Mr Sutherland's mental impairment relates to his neurofibromatosis. He has never been admitted to a psychiatric unit or been under the care of a psychiatrist.

24. This condition leads, as noted above, to a mild intellectual handicap, learning difficulties and short-term memory deficit. For example, on a mini mental state examination, he could only recall four or five out of six items over a three-minute period and not always in a pattern of sequential recall.

25. He has cognitive deficits, also, and his IQ has been measured as at 57. He has had significant behavioural difficulties relating to his intellectual handicap and severe social problems. He becomes easily agitated. In the past he has worked with counsellors, particularly on impulse and anger control. This may perhaps be related to episodes of panic and anxiety that he experiences, when he gets "stressed out".

26. Neither Dr George nor Dr Allnutt diagnosed a major psychiatric disorder.

27. A report of a psychometric evaluation was provided. This reported on three tests administered to assess his cognitive ability, a broad range of his academic skills and his adaptive functioning across a range of skills (including the ability to communicate with others, display appropriate social and academic skills, function effectively at home and in the community, engage in leisure and work activities and care for individual health and safety needs).

28. The results showed a Full IQ of 57, though his true IQ is likely to fall within the range of 54 to 62. He demonstrated poor verbal comprehension, poor perceptual reasoning and poor working memory and processing speed abilities. His scores were consistent with the difficulties he reports in daily life as a result of poor literacy and numeracy and a poor comprehension of complex concepts. Thus, he had difficulty in obtaining and retaining employment because of his disabilities and he requires assistance in skills such as reading or filling in forms or tasks such as locating a telephone number in a telephone directory.

29. The report assessed him as meeting the diagnostic criteria for Mild Mental Retardation. The report continued:

In practical terms, the current assessment indicates that Mr Sutherland can understand basic task instructions and can communicate his needs at a basic level, however relative to his peers, he is impaired and requires assistance with:

• Reading and understanding written material and complex forms
• Understanding long questions and complex verbal directions
• Following fast moving or technical conversations
• Attending to and remembering relayed information
• Reasoning abstractly, finding links between concepts, and applying solutions to problems
• Calculating arithmetic above a basic level
• Understanding visuospatial concepts and designs

If therapeutic interventions were to be undertaken with Mr Sutherland either in the community or whilst in custody, then Mr Sutherland would likely benefit from:

1. Simplified explanations, repeated instructions, and the use of prompting, modelling and guidance on more complex tasks
2. Participation in drug and alcohol counselling. However any interventions provided should be one-on-one and conducted by a person skilled in working with individuals who have an intellectual disability
3. Targeted practical interventions to assist him to increase his capacity to engage in employment, parenting, leisure and social activities

30. Both psychiatrists had seen this report and both felt that it was consistent with their views.

31. A person's ability to participate in a fair trial is sometimes regarded as having two elements, a capacity to respond to charges laid against the person and a capacity to participate in the trial process. Those capacities are sometimes referred to as fitness to plead and fitness to be tried. The cases use both terms and it often depends on the legislation governing the issue and the applicable procedure that determines the phrase to be used.

32. In this Territory, the phrase used in div 13.2 of the Crimes Act, is "unfitness to plead" and, therefore, "fitness to plead" is the appropriate term. See also Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1.

33. The legislation requires an investigation as to whether a person charged with a criminal offence is unfit to plead. That is to say, a person is presumed to be fit to plead and the presumption is to be rebutted if it established, on investigation, that the person is unfit to plead: Crimes Act ss 312(1), (2). The question of fitness is a question of fact and is to be decided on the balance of probabilities: Crimes Act

s 312(3).

34. In this jurisdiction, the test for unfitness to plead has been established in legislation in s 311 of the Crimes Act which provides:

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

a. understand the nature of the charge; or

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

c. understand the proceeding is an inquiry about whether the person committed the offence; or

d. follow the course of the proceeding; or

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

f. give instructions to the person's lawyer.

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

35. The test in that section is clearly based on the common law as expressed by Smith J in R v Presser at 48 which has been accepted by the High Court in Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230 at 245. Thus, in the construction of this legislative text, the common law is commonly and appropriately used to elucidate the meaning of the grounds set out in the section.

36. I have, in Egan v JG [2010] ACTSC 53, given some detailed consideration to each of the grounds. I apply those considerations.

37. Mr Sutherland's mental state has been referred to above (at [23]-[30]). It is clear he has a significant intellectual impairment.

38. As noted above (at [12]), a number of reports have been prepared. The psychiatrists, Dr George and Dr Allnutt, expressed opinions as to whether Mr Sutherland is fit to plead by reference to the statutory grounds.

39. Each of the psychiatrists agreed that Mr Sutherland met the grounds for fitness set out in s 311(1)(a), (b), (c) and (e), though with some reservations. No submissions were made suggesting that those opinions were other than soundly based or supportable. I have carefully read the reports and am satisfied that, so far as those criteria are concerned, Mr Sutherland is, on the balance of probabilities, not unfit to plead.

40. The issue, then, is whether Mr Sutherland can follow the course of the proceedings which it is proposed to be taken against him and whether he can give instructions to his lawyers. It is those issues that I will address.

41. In two of his four reports, Dr George expressed the view that Mr Sutherland would have difficulty in instructing his solicitors, namely, the ground in s 311(1)(f) of the Crimes Act.

42. I considered this ground in Egan v JG at [107]-[113] where I said:

This criterion is a common source of concern, perhaps because it is the one that affects defence counsel most clearly. It is also one where some interpretation is needed. I note, for example, that there is no qualifier, such as in New Zealand, where "adequately" has been included in the relevant provision, s 39A of the Criminal Justice Act 1954 (NZ). This has been interpreted to mean that a person is not fit to plead if what is communicated to counsel is unwise: R v Carrel [1992] 1 NZLR 760 (at 767). This does not apply in Australia as noted above (at [74]). As was said in Ngatayi v The Queen (at 8), an accused does not have to have the capacity to make "an able defence" or "to act wisely or in his own best interest."

The criterion does allow for some flexibility as noted by Grubin D, "What Constitutes Fitness to Plead?" [1993] Crim LR 748 (at 754). Indeed, some commentators go so far as to call the criteria "vague": Freckleton, I "Rationality and Flexibility in Assessment of Fitness to Stand Trial" (1996) 19 International Journal of Law and Psychiatry 39 (at 49).

The High Court, in Ngatayi v The Queen (at 9), referred to the need for "the accused [to be] able to understand the evidence, and to instruct his counsel as to the facts of the case" so that no unfairness or injustice is occasioned. In R v House [1986] 2 Qd R 415, Connolly J (with whom Ambrose J agreed and Williams J generally agreed) said (at 422) by reference to Ngatayi v The Queen:

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

Further, it appears that a defendant may be unfit to plead because their condition may not enable them to meet this criterion where, although they can give an account of relevant events to counsel, the reliability of the account is problematic as is their capacity to adhere to it when subjected to pressure or suggestion, as occurred in R v Dunne [2002] WASC 196 (at [26]).

Thus, where the defendant's lack of the insight into their medical condition means that they are unable to give instructions to their lawyers at the trial, they will be unfit to plead. See Wills v The Queen [2007] NSWCCA 160; (2007) 173 A Crim R 208 (at 224 [80]).

Medical conditions can impair the ability of a defendant to communicate rationally and effectively with their counsel, not only by irrationality or delusion. Thus, states such as akinesia can result in apathy, disinterestedness or unpreparedness to communicate with counsel; see Freckleton I, "Rationality and Flexibility in Assessment of Fitness to Stand Trial" (1996) 19 International Journal of Law and Psychiatry 39 (at 53). Professor Freckleton suggests that "mere capacity to communicate an instruction is not sufficient". It must be responsive to questions posed and more than monosyllabic, as well as not being nonsensical or irrational. Of course, the cause must be the mental impairment and not mere intransigence, lack of interest or unwillingness to participate. Similarly, lack of rapport is not sufficient, even though it would be prejudicial to an effective defence, unless it is caused by the mental impairment.

The limits on the notion seem to suggest that a determination to plead not guilty in the face of a strong Crown case and, indeed, a failure or inability to instruct counsel on the issue of whether the defendant is not guilty on the grounds of mental illness will not result in a finding of unfitness to plead. See R v Holt [2009] NSWDC 147 (at [28], [34]).

43. It is not irrelevant to have regard, in the context of this criterion, to the general law test of capacity to give instructions. The test has been set out in Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889; [2003] 3 All ER 162 at 188; [75] when Chadwick LJ said that

the test to be applied ... is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law - whether substantive or procedural - should require the interposition of a next friend or guardian ad litem.

44. In approving that approach, Debelle J in Dalle-Molle v Manos [2004] SASC 102; (2004) 88 SASR 193 at 199-200; [26]-[27], also noted the need for the person to understand the nature of the litigation and its outcomes.

45. In this case, Dr George was relying on statements by Mr Sutherland to him in which he said things like "I let the solicitor decide what is the best thing". Dr George also reported that "Mr Sutherland said that he would be able to talk to his solicitor about his pleas in relationship to the current charges", though he added that Mr Sutherland also said "that he would have difficulty in talking to his legal representative about other matters". What those matters were was not stated nor elucidated in cross-examination.

46. Dr George did, however, in his oral evidence, principally rely on the assessed failure that he saw Mr Sutherland would face in following the proceedings. That was, he said "the big stumbling block, from my point of view, I couldn't get over that one and say that he was fit to plead".

47. Indeed, he commented that he had "ticked" the other criteria. He did say that the other could be argued to be deficient at some level, but he seemed to accept that the real issue was whether Mr Sutherland could follow the proceedings.

48. Dr George said that Mr Sutherland "would need simplified explanations of everything, he would need instructions to be repeated regularly". He described it as a "time-consuming process" but not one that would be either unsuccessful or ineffective.

49. Dr Allnutt seemed to engage Mr Sutherland at a better level. He said that

[Mr Sutherland] was able to engage with me in a number of areas that caused him concern in the legal domain, that he had been kept on remand for 14 months for a crime for which he had not been convicted, that he had concerns about the evidence and that he required better information with regard to the quality of the evidence, he understood that he had a right to see his wife's statements and on this basis I believe he would be able to engage in a dialogue with his counsel of an adequate quality for the counsel to be able to obtain instructions.

50. Dr Allnutt described in oral evidence his interactions. He described Mr Sutherland as "cautious"; he said that he told him "he wants clear evidence for everything really before he proceeds ... so he could resist certain pressures on him, and he could point out discrepancies".

51. He noted, too, that Mr Sutherland was able to "disagree with the narrative". He also said that he knows when he does not understand some part of the evidence or a concept.

was able to tell me what the police said he had done so he could recall those interactions so - and he was able to tell me that he was somewhat resistant to entering a plea at this stage ... that he said he wants clear evidence for everything really before he proceeds, which means that ... he must have had working memory for all those things.

53. In oral evidence, Dr George said that he had certainly not been given this much information from Mr Sutherland in the interviews he had had with him.

54. Clearly, Mr Sutherland would need legal representatives who were patient, thoughtful and able to explain matters to him in simple language and cognisant of his short-term memory deficits; that is "proper explanation ... as the case may require". In this regard, the article, Michael Barnett et al, "Psychological and Ethical Issues in the Relationship between Lawyers and Mentally Ill Clients" (2007) 11 University of Western Sydney Law Review 63, would be of enormous assistance to Mr Sutherland's legal representatives in approaching their task of acting for him in these circumstances.

55. Although Mr S Gill, who appeared for Mr Sutherland, did ask some specific questions of Dr George suggesting that Mr Sutherland could not properly give instructions to his lawyers, neither counsel really directed their submissions to this ground as to whether Mr Sutherland was fit or unfit.

56. It seems to me, on the basis of the evidence I have received, especially the level of engagement Mr Sutherland showed he had with Dr Allnutt, that while some assistance will be needed from his legal representatives, Mr Sutherland can instruct his lawyers to the degree necessary to be fit to plead. I so find on the balance of probabilities.

57. In Egan v JG, I said (at [95], [97]-[99]):

The court does not require the defendant to understand the evidence in detail, nor to understand necessarily the law or its application to the facts. What is required is "to follow the course of the trial, understand the substantial effect of the evidence presented by the prosecution and ... properly defend the charge assisted by counsel": R v Dunne [2001] WASC 263 (at [14]).

...

It is correct that the court in determining fitness to plead must consider the assistance that can be provided to the defendant, unless, of course, that assistance is unavailable, such as for an unrepresented defendant: see Ngatayi v The Queen [1980] HCA 18; (1980) 147 CLR 1 (at 9).

It is also correct that some steps can be taken to accommodate difficulties that a defendant with a mental impairment might suffer, such as an adjournment, as suggested in Kesavarajah v The Queen (at 246). Other forms of assistance may be prejudicial to other parties: Mantell v Molyneux [2006] NSWSC 955; (2006) 68 NSWLR 46 (at 56 [33]).

In R v Smith [2008] NSWDC 23, Norrish QC DCJ concluded (at [36]):

I conclude that the evidence establishes, on the balance of probabilities, that the accused is fit to be tried. All the criteria identified in the 'Presser test' are satisfied. However, any proceedings relating to the prosecution of the accused will need to provide opportunity for the accused, during the hearing, to obtain 'one on one' assistance to follow the proceedings from time to time and there will need to be suitable breaks and adjournments to assist the accused to digest, collate or synthesise the evidence given in the trial.

58. I also noted (at [94]) that a limited attention span is "a factor that, where a result of the mental impairment, justifies a find of unfitness: R v McKitterick (2004) 36 SR (WA) 115 (at 119 [24]); R v Polanski [1999] NSWSC 433 (at [53])."

59. In R v Monaghan (No 2) [2011] ACTSC 62, I also said (at [16]-[17]):

The genesis of s 311(1) is in the decision of Smith J in the Supreme Court of Victoria in R v Presser [1958] VicRp 9; [1958] VR 45. As to this criterion, (set out in

s 311(1)(d) of the Crimes Act), Smith J said (at 48):

[The accused] 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 need not, of course, be conversant with court procedure ...

In R v Chanthasaeng (2008) 7 DCLR (NSW) 158, Nicholson DCJ said of this requirement (at 167; [46] to [47]):

An accused should be able to follow the course of the proceedings, so as to understand what is going on. That is, he will need to understand at some level the proceedings are a formal inquiry, conducted usually before a presiding judge and jury. If there is no jury, he will need to understand the judge is the tribunal of both fact and law. He will need to understand the prosecutor is charged with presenting evidence in support of the Crown allegations; that defence counsel is tasked with answering those allegations as best they can be answered.

He will understand the tribunal of fact, however constituted, is tasked with determining whether the prosecution has proved from the evidence in the trial the allegations made in the charges. In following the course of the proceedings, he will be able to follow the evidence. The accused must have at least a rudimentary understanding of the reception of evidence adverse to him, whether orally or by exhibits, and the effects of cross-examination.

60. I note also the High Court's comment in Ngatayi v The Queen [1980] HCA 18; (1980) 147 CLR 1 at 8 that the criterion has to be applied in a reasonable and commonsense way.

61. These are the principles that I propose to apply.

62. One other issue has arisen and that relates to the fact, as I have noted above (at [20]), that Mr Sutherland has a poor short term memory. Section 311(2) is set out above (at [34]). The effect of this restriction on Mr Sutherland's unfitness has also to be considered.

63. Section 311(2) clearly has its genesis in the common law view that lack of memory of an accused is not a sound basis for a finding of unfitness to plead. In Russell v HM Lord Advocate [1946] SC(J) 37, considered the position of an accused suffering from "hysterical amnesia". Lord Sorn said (at 40):

She [the accused] is able to instruct, in my opinion, a defence, even though that defence has the peculiarity of including in its features that the accused has forgotten the period of the events dealt with in the charge. ... I am unable to see that unfairness should follow from this situation. The Crown must prove their case, and must prove it to the satisfaction of the jury, and the accused can tell the jury that she has no recollection of these events ...

64. The Lord Justice-Clerk (Lord Cooper) supported Lord Sorn, commenting (at 46):

The only grounds associated with the abnormal personal condition of the accused which our law and practice have ever recognised as the basis of a plea in bar are (a) insanity (either in the ordinary sense, or in the special sense of the Lunacy (Scotland) Act 1857, section 87), and (b) the condition of the deaf mute. There is no trace in either Scotland or England of a plea in bar founded upon loss of memory by a sane and otherwise normal accused

person ...

65. This decision was followed with agreement in R v Podola [1960] 1 QB 325 at 356. The Court summarised its position that "[e]ven if the loss of memory had been a genuine loss of memory, that did not of itself render the appellant insane so that he could not be tried on the indictment."

66. In turn, R v Podola has been followed in NSW in R v Drummond (Unreported, NSW Court of Criminal Appeal, Gleeson CJ, Grove and Newman JJ, 27 May 1994). That case, however, concerned, as did the English and Scottish decisions referred to above, loss of memory about the events said to constitute the offence. Thus, Gleeson CJ said:

The common sense behind this conclusion is, I consider, fairly apparent. There may be any number of reasons why a person accused of a crime may be unable to recollect the events of the occasion on which the alleged crime occurred. Amnesia may be one such reason; age, other forms of infirmity, or simply distance in time between the alleged events and the trial, might explain the inability to recollect. The fact that an accused person cannot, for one reason or another, recollect events of the occasion of the alleged crime does not mean that the accused is, within the words of R v Presser [1958] VicRp 9; [1958] VR 45 at 48 incapable of letting his counsel know what his version of the facts is. The accused person who says to his counsel 'I can't remember what happened on that day' is not thereby unfit to plead.

Amnesia, which may be one particular reason why a person is unable to recall the events of the occasion, could itself result from any number of conditions and circumstances. It may result, for example, from Alzheimer's disease, from alcoholism, from trauma, or from hysteria.

67. This decision obviously extends the concepts in Russell v HM Lord Advocate and R v Podola, where the loss of memory that was irrelevant was that of "a sane and otherwise normal accused person". Clearly, Gleeson CJ was describing a much wider situation.

68. See also R v Richards (1994) 64 SASR 42 at 48, where Mullighan J said:

Also loss of memory, per se, in a non-insane person is not regarded as a ground of unfitness to plead: Russell and Podola`. The question is whether by means of some physical or mental condition the accused is unable to follow the proceedings of the trial and to make a defence in these proceedings: Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230 at 244 per Maon CJ, Toohey and GaudronJJ.

69. It might, nevertheless, be said from these comments that they refer to a loss of memory, however caused, of the events alleged to have constituted the offence and not to a mental impairment which causes short term memory loss that interferes with matters such as the accused's ability to follow the course of the proceedings, understand the substantial effect of any evidence or to give instructions to lawyers.

70. That, however, is not how the issue was recently considered.

71. Mr S Gill, who appeared for Mr Sutherland, drew my attention to the decision of Penfold J in R v Griffith [2008] ACTSC 77, where Mr Griffith was held to be unfit to plead. In that case, Dr George had examined Mr Griffith and found him to have a memory loss about the alleged offence and concluded, because of s 311(2) of the Crimes Act, that he was fit to plead. A report, however, was provided by Dr T Lioulios. Her Honour commented (at [21]):

Dr Lioulios assesses that Mr Griffith is suffering an amnesic syndrome as a result of frontal lobe degeneration found in alcohol-related dementia, which affects 'encoding of new information as well as retrieval of past information'. Dr Lioulios points out that this learning impairment does not simply produce a loss of memory, but interferes with Mr Griffith's 'ability to organise information in a logical schematic manner' and causes 'the loss of strategic capability' Dr Lioulios considers that the learning impairment 'significantly and negatively impact[s] on [Mr Griffiths] capacity to comprehend and analytically consider any charge brought against him.

I further find that, although impairment of his memory functions is significant in my assessment of Mr Griffith's capacities against some of the subs 311(1) tests, the significant impairment relates mainly to Mr Griffith's inability to form the new memories that he would need to be able to take a proper part in the trial processes, rather than to any loss of memory of past events, and therefore subs 311(2) does not prevent a finding that Mr Griffith is unfit to plead.

73. Clearly, her Honour implicitly accepted that, had the mental impairment of Mr Griffith been limited to amnesia, it would have called s 311(2) into operation. That the amnesia caused other mental deficits meant that it was not "only because [Mr Griffith] was suffering from memory loss" that he was unfit to plead.

74. It was also clear from the analysis that her Honour conducted of the facts, by reference to the criteria set out in s 311(1) of the Crimes Act, that the impairment was directly relevant to them and not merely a loss of memory of the events said to give rise to the offence charged.

75. The question is one not without difficulty, but it seems to me that the words of the sub-section should be given their ordinary meaning and, if a memory loss is the only reason why one of the criteria is not met, then the accused is not to be found unfit to plead. This would not be so where the memory loss caused other impairments, such as in R v Griffith.

76. It does not seem to me that the words of the sub-section should be confined to loss of memory of the events said to constitute the offence charged nor, following R v Drummond, that the sub-section does not apply to memory loss caused by some abnormality of mind or other mental impairment, despite the formulation used in R v Richards. It seems to me that it does apply to such a situation.

77. I was not addressed on whether the Human Rights Act would require any other and, if so, what, construction of this section.

78. Whether gross memory loss, such as was experienced by the accused in Tasmania v Bosworth [2005] TASSC 29; (2005) 153 A Crim R 278, would also require some reconsideration of this approach is for another day. As Crawford J said (at 281; [10]), "[t]he accused is physically fit to attend trial but would, for all effective purposes, be present in body only".

79. Of course, this is not to say that the trial process itself should not take account of the memory loss. That is clear from what was said by Gleeson CJ in R v Drummond but it would also be required where the memory loss, for example, led to some difficulties for the accused in following the course of the proceedings.

80. I addressed some of those issues in R v Monaghan (No 2), though the cause for inability to follow the proceedings was different there. See also R v Ey [2011] SASC 145; (2011) 110 SASR 476 at 487; [57].

81. Dr George's evidence was clearly to the effect that the difficulty in following proceedings was because of Mr Sutherland's short-term memory deficit. He was not prepared to compare Mr Sutherland's situation with that of Mr Griffith. He said:

that man [Mr Griffith] had an alcoholic dementia ... I mean, we're looking at a man that had an acquired brain injury versus a young man who appears to have a congenital intellectual deficit.

82. He did feel, however, that Mr Sutherland may have some difficulty in encoding and processing new information but in the context that

in order to understand everything in context, you have to be aware of different factors at different times, and that requires being able to draw on your memory in order to adequately understand what's happening at any point in time, and I don't think Mr Sutherland's got that capacity.

83. He accepted that this meant that Mr Sutherland, when he is able to absorb information, comes with little context. He also noted that he thinks in concrete terms with limited ability to have any form of abstract thought or reflective thinking.

84. Dr Allnutt, however, pointed to evidence that Mr Sutherland could follow proceedings. In his report, he said:

My only area of concern is in relation to his capacity to follow proceedings (according to Kesavaraja [sic]) should he plead not guilty and the matter proceeds to a trial; he provides a history of short term memory difficulties and has stated to others and myself - that in Court he has difficulty following what is going on and that this has been a problem in other domains, impacting on his functioning in other areas; it is noted that on neuropsychological testing he demonstrated a poor working memory and processing speed and this would be supportive of such problems.

On the other hand there is evidence that he has been able to follow legal proceedings in general - for example, he was able to state that on a prior occasion in Court he was on bail, represented by a barrister, that the issue discussed related to his fitness to stand trial, that he needed further assessment and that this is his understanding of the delay in the proceedings, while he expresses it in terms of having difficulty understanding why it is being delayed, he did understand that the issue of fitness needs to be clarified and that this has required multiple evaluation by lawyers.

85. Dr George did note that Mr Sutherland's mother scored Mr Sutherland much higher in terms of his adaptive functioning that the psychometric testing had. This, he pointed out, meant that his mother believed that he was functioning a lot better than the testing suggested. He noted that there may be a parental bias, but also said that it "[d]epends how well they know the child or their young adult, as well".

86. Dr George could not recall what he had discussed with Mr Sutherland in respect of this ground, but suggested it was whether Mr Sutherland "followed what was going on in court when he attended court and it'd be a fairly simple question like that".

87. Dr Allnutt was cautious in his approach. He recognised that the question of Mr Sutherland's ability to follow proceedings was not an easy one. He considered, however, that if there was an opportunity for somebody to explain it in simple terms, he had the capacity to comprehend what was going on. He said:

[W]ith the court accommodating him, maybe with him ... sitting next to [counsel] - I think he would have capacity to say 'Look, that person, that's not quite what happened' or 'I don't agree with that and this is what I think has happened'.

88. He was satisfied, too, that Mr Sutherland could challenge the narrative, especially as it related directly to him as well as when a witness was giving evidence. He did acknowledge, however, that his memory deficit "might be a greater issue under those circumstances." He also noted that Mr Sutherland was "able to provide me with biographical information about himself that really went up to fairly recent past and also what his subjective state was when he saw me". He was also of the view that in practice, Mr Sutherland's capacity was probably not as bad as reflected in the psychometric testing because of the "more obvious evidence of capacity." This would, of course, be consistent with his mother's assessment.

89. The submissions of Mr Gill and Ms S McMurray, who appeared for the prosecution, both acknowledged Mr Sutherland's impairment.

90. Mr Gill submitted that it was important that the trial be fair. This may readily be accepted. He submitted that this was "a line ball call". He submitted that Dr George's assessment of the impact of memory was more persuasive than the way Dr Allnutt perceived it.

91. On the other hand, Ms McMurray submitted that the evidence of Dr Allnutt was persuasive and consistent with the facts. For example, he had received from Mr Sutherland an account of the proceedings to date which, if it was accurate, demonstrated an ability to follow the proceedings. The account was, the prosecution submitted, sufficiently accurate to justify this assessment.

92. Mr Gill accepted that not merely any reduction in capacity to participate in proceedings was sufficient to disclose unfitness, but that where there were such significant challenges as here, then the line of unfitness had been crossed.

93. There was, at a base level, no real difference between the opinions of the two psychiatrists - both accepted that Mr Sutherland was substantially impaired.

94. Both accepted that he would have difficulties in following the court proceedings, especially a trial, but there they diverged. Dr George considered that even with frequent breaks and explanations, the problems would not be resolved. This, however, he attributed to the memory loss which I have considered cannot be taken into account if that is the only reason for the unfitness.

95. Even accepting that, Dr Allnutt considered that the problems Mr Sutherland would face in following the court proceedings could be addressed with appropriate assistance.

96. I was mindful of Mr Sutherland's Full IQ. That, however, is not necessarily sufficient of itself to justify a finding of unfitness. See Mark Ierace, Intellectual Disability: A Manual for Criminal Lawyers (Redfern Legal Centre, 1989) at 66.

97. I was impressed with the extent of the evidence that Dr Allnutt presented of the more comprehensive discussions that he had had with Mr Sutherland. It did disclose a greater level of understanding and knowledge in respect of the proceedings and the issues in them than Dr George experienced. This evidence was important as it was given in the context of the admitted memory deficits Mr Sutherland experienced.

98. There is no doubt that Mr Sutherland will, however, require assistance. That may require preliminary discussions with him about the course of the proceedings, but also specific provisions of the trial. These would include possibly breaks at frequent intervals and perhaps Mr Sutherland being able to be seated close to his legal representatives so that he can give instructions contemporaneously with the adducing of evidence. These are matters that need to be addressed by the trial judge, to whose attention these remarks should be drawn.

99. In R v Monaghan (No 2) and R v Ey, some of the options that need to be considered have been explored. The trial judge is required to ensure a fair trial. These options, akin to other provisions, such as the availability of an interpreter, need to be considered by the trial judge. In a recent trial, I adjourned frequently to meet the medical condition of the accused. There are provisions that can and, in this case, should be made.

100. On the assumption, which I am prepared to make, that appropriate special provision is made, I am, on the balance of probabilities, satisfied on all of the evidence that Mr Sutherland is not unfit to plead.

I certify that the preceding one-hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the Crown: ACT Director of Public Prosecutions

Solicitor for the defendant: Darryl Perkins & Associates