Re GZW[2024] QMHC 2

MENTAL HEALTH COURT

Background

1. [1]
   This is a reference under the Mental Health Act 2016 (Qld) (‘the Act’) brought by the defendant’s legal representatives in relation to GZW born on [redacted].
2. [2]
   I was assisted in this matter by Dr Harden and Dr Till.  
3. [3]
   The reference relates to 13 offences alleged to have been committed between 21 January 2021 and 9 January 2023 (when GZW would have been a child aged between 15 and 17 years old). 
4. [4]
   The alleged offences include armed robbery, robbery and attempted robbery, unlawful use of a motor vehicle and entering dwellings with intent.  

Summary of offences

5. [5]
   Dr Gupta, psychiatrist, interviewed GZW twice; once on 2 May 2023 and again on 19 February 2024. In his addendum report dated 22 April 2024, Dr Gupta helpfully summarised the facts of the alleged offences and GZW’s accounts of the alleged offences at that time, noting any differences between his first and subsequent interview.

Charge 1 – Robbery – 21 January 2021

6. [6]
   At about 5:55 pm on 21 January 2021, the complainant parked her car in an underground carpark at a unit complex. As the complainant got out of her car, GZW rushed from behind the car and confronted the complainant with a knife, holding it to her body. 
7. [7]
   GZW said to the complainant, “I have a knife” and “Get out of the car”. GZW and the complainant struggled outside the open car door and GZW dragged the complainant to the ground and ripped a bag containing takeaway food from her arms. 
8. [8]
   GZW got into the driver’s seat of the complainant’s car, closed the door and attempted to start the vehicle. The complainant opened the back door of the car and started screaming. A witness heard and came down to the carpark. The witness called out to the complainant to get away from GZW and she ran towards the witness. GZW grabbed the complainant’s handbag from the passenger seat, got out of the car and left the scene.
9. [9]
   The witness chased GZW in an attempt to apprehend him and GZW turned and told him to “fuck off, don’t come near me”.
10. [10]
    In GZW’s account to Dr Gupta during his first interview, GZW stated he could not recall the details of the offence. 
11. [11]
    In his second interview, GZW indicated that he recalled the details of the offence and that he “tried to start the car, swung the knife, couldn’t start so took off”. GZW stated he was using amphetamines at the time and he knew what he was doing was wrong. He further spontaneously reported that he had no remorse at the time. He denied experiencing any delusions or hallucinations at the time of the alleged offence.

Charge 2

12. [12]
    Charge 2 was removed from the reference.

Charge 3 – Robbery – 29 October 2021

13. [13]
    The complainant in this matter was a residential support worker acting in the capacity of GZW’s carer. At 10:10 pm on 29 October 2021, GZW and a female offender entered the complainant’s office at GZW’s care residence where the complainant had just gone to bed.
14. [14]
    The female offender said, “I need your car” and continued to demand the keys to the complainant’s car. The complainant felt intimidated so handed over her keys. GZW was standing by the door holding a bladed sickle garden tool, staring at the complainant. The female offender handed GZW the car keys. GZW ran outside, got into the driver’s seat and started the car.
15. [15]
    The female offender then demanded the complainant hand over her mobile phone. The complainant refused. The female offender attempted to snatch the mobile phone out of the complainant’s hand. The complainant moved her hand away quick enough that the female offender did not manage to grab the phone.
16. [16]
    The female offender said words to the effect of, “If you call the police I will come back and shoot you, I will come back and shoot you three times as I live here now.”
17. [17]
    The female offender turned around and approached the complainant and gave her a hug stating words like, “I need the car to go and see my sister as she has just been raped.”
18. [18]
    The female offender joined GZW in the complainant’s car and GZW drove the car away.
19. [19]
    During Dr Gupta’s assessment in 2023, GZW indicated:

“Stole a car from a resi support worker. Was just drunk. I was hearing voices in my head telling me to do it. I wouldn’t have done it if I wasn’t drunk. It was my sister with me. I didn’t say my sister had been raped. It’s not true.”

20. [20]
    GZW provided a similar account during the second assessment, indicating:

“Remember driving the car but don’t remember anything else. I was drunk and blacked out. Didn’t know what I was doing. I didn’t know what was I doing as I was so drunk.”

21. [21]
    In his second interview, GZW denied hearing any voices. 
22. [22]
    Dr Gupta stated that there was no evidence to suggest he was experiencing delusions, hallucinations or passivity phenomenon at the time of the alleged offence.

Charge 4 – Attempted robbery – 2 August 2021

23. [23]
    On 2 August 2021, the complainant attended a shopping centre with her husband and two young children. The complainant’s husband parked their car in an underground carpark and got out of the car to enter the shopping centre.
24. [24]
    GZW approached the car and opened the driver’s side door, sat in the driver’s seat and aggressively told the complainant to “get the fuck out”.
25. [25]
    The complainant responded, “no, you get the fuck out”. GZW said, “get out of the fucking car”. The complainant refused, saying, “no, you get out. My kids are here”.
26. [26]
    The complainant, fearing for her and her children’s safety, attempted to grab hold of the steering wheel and GZW pushed her arms away.
27. [27]
    GZW tried to steal something from the centre console but was unsuccessful. GZW exited the car and ran inside the shopping centre.
28. [28]
    GZW told Dr Gupta he understood the charge but could not recall any details of the alleged offence.

Charges 5-7 – Armed robbery, unlawful use of a motor vehicle, stealing – 21 June 2022

29. [29]
    On 21 June 2022, GZW and a co-offender approached the complainant who was parked in her car with her two children aged eight and 12 years old. GZW and his co-offender produced a multi-tool with the knife attachment pointed towards the complainant and demanded she exit the vehicle. The complainant and her children complied.
30. [30]
    GZW drove the car away with the co-offender in the passenger seat. GZW drove to a petrol station where the co-offender filled up the vehicle. When the co-offender returned, GZW drove off without making any attempt to pay for the fuel dispensed.
31. [31]
    During his interview with Dr Gupta in 2023, GZW stated:

“I needed money. I was using drugs at that time. My brain wasn’t functioning. I was stressing. I needed to get back home to my sisters in Coopers Plain. I knew what was I doing. Just heard some voice inside my brain, just go and do it. I wasn’t gonna do it because of the kids. I was blacked out. I am going to write a letter to the people I hurt and give it to the court.”

32. [32]
    GZW further stated:

“I was almost out of fuel. I wasn’t going to ditch the car. I needed the car. If they got the wind, it was a stolen car, I would have been caught because they know who I am.”

33. [33]
    On further clarification in 2023, GZW indicated that the voice was inside his head and he denied any passivity phenomenon at the time of the alleged offences. Dr Gupta stated that there was no evidence to suggest that he was experiencing any other psychopathology suggestive of a major mental illness.
34. [34]
    During his second interview in February 2024, GZW stated:

“Wasn’t thinking right. Was trying to support my own habit. My drug habit. I regret doing it because there were children in the car. Filled up but I can’t remember anything else. It was a stolen car. I didn’t care about anything and just fucking filled up. Sorry for swearing but it was a stolen car and why pay for fuel.”

Charge 8 – Unlawful use of a motor vehicle – 16 June 2022

35. [35]
    On 16 June 2022, the complainant parked her car in a shopping centre car park and exited it, leaving the keys in the ignition and the car running. GZW entered the complainant’s vehicle and drove away.
36. [36]
    In an account to Dr Gupta, GZW stated, “I didn’t steal it. I was just driving it. Was using ICE at that time.”

Charges 9 and 10 – Enter dwelling and commit x 2 – 28 December 2022

37. [37]
    On 28 December 2022, at about 3:55 pm, GZW along with co-offenders drove a car into the garage door of the complainant’s house. One female offender got out of the car and began searching through items left outside and trying to open the rear door of the complainant’s house, while two male offenders stayed out the front. The events were captured on CCTV. The driver remained inside the car, unseen.
38. [38]
    In an account to Dr Gupta, GZW stated:

“I broke in and stole stuff. I don’t remember much but I just remember driving a car. I remember breaking into one house. I was using drugs and can’t remember shit.”

Charges 11-13 – Stealing, attempted robbery armed / in company / wounded / used personal violence, wilful damage – 31 December 2022

39. [39]
    The complainant in this matter was a child safety worker for GZW. At around midnight on 31 December 2022, the complainant woke up to GZW standing in his bedroom and noticed that his mobile phone was missing from next to his bed. The complainant confronted GZW about the missing phone.
40. [40]
    GZW left the bedroom momentarily and returned armed with a pair of multi-grip pliers. GZW approached the complainant, brandishing the pliers towards the complainant and said, “Give me your watch and your keys or I will split your head open.”
41. [41]
    In fear of being assaulted, the complainant briefly struggled with GZW and successfully disarmed him.
42. [42]
    The complainant told GZW to stay in his bedroom as he went to a neighbours’ house to source a phone to call the police. The complainant momentarily locked GZW in his bedroom to do so.
43. [43]
    GZW forced his way through the fly screen affixed to the window of the unit and caused a large hole to tear upon his exit. GZW scaled down to the ground floor of the unit complex and ran from the residence, yelling and causing a disturbance.
44. [44]
    At the time of the offence, GZW claimed to be under the influence and was acting in a nonsensical and erratic manner. He was conveyed to hospital under police guard for a mental health assessment prior to being transported to the watchhouse.
45. [45]
    In an account to Dr Gupta, GZW stated that he could not recall the circumstances of these charges though also stated that he never stole the complainant’s phone and also denied threatening him.

Charge 14 – Serious assault public officer performing function – 9 January 2023

46. [46]
    The complainant in this matter was a police officer on duty in a police watchhouse. GZW used medical stickers to cover a security camera blocking the vision of his cell. The complainant and another police officer entered the cell to remove the stickers.
47. [47]
    GZW removed the stickers from the camera as the officers entered. GZW was asked to hand the stickers over to the officers and GZW threw them at the officers’ feet. 
48. [48]
    GZW was given a lawful direction to sit on the bed and he did not. The complainant used his open hand to push GZW to sit on his bed. GZW struck the complainant in the rib causing pain and discomfort to his torso area.
49. [49]
    The complainant struck GZW with a closed fist in the left cheek to discontinue the assault.
50. [50]
    GZW stated, “I never did that. The police officer assaulted me. I defended myself. He punched me in the face, and I punched back. I want to sue him.”

Dispute of fact and unsoundness of mind

51. [51]
    GZW, by his account to Dr Gupta, disputes charges 11 and 14.
52. [52]
    There is no evidence that this dispute exists only because of GZW’s mental condition.
53. [53]
    Accordingly, in relation to these offences, pursuant to section 117 (1) of the Act, I cannot consider unsoundness of mind.
54. [54]
    In relation to unsoundness of mind, only Dr Gupta has properly addressed this issue.
55. [55]
    In Dr Gupta’s opinion, GZW was not suffering from a major mental illness at the time of the alleged offences and was not deprived of any of the relevant capacities.
56. [56]
    He also notes that GZW said that he was under the influence of alcohol or illicit substances at the time of the alleged offences.
57. [57]
    Dr Gupta stated GZW was not experiencing psychopathology that would deprive him of the capacity to reason as to the moral rightness or wrongness of his conduct or to know that he should not do what he did.
58. [58]
    Further, Dr Gupta stated that GZW was not deprived of the capacity to control his actions. GZW has not reported any passivity experiences historically or at time of the alleged offences. During his interviews with Dr Gupta, GZW also denied experiencing delusions or hallucinations at the time of the alleged offences.
59. [59]
    In Dr Gupta’s opinion, GZW was not deprived of the capacity to know what he was doing.
60. [60]
    Both GZW’s legal representatives and the Crown concur that GZW was not of unsound mind when he allegedly committed these offences.
61. [61]
    The issue in this case is fitness for trial. 

Relevant legal principles

62. [62]
    Before dealing with the evidence in this case, I will set out the relevant legal principles in relation to fitness for trial. 
63. [63]
    Section 118 of the Act sets out the circumstances of when the Mental Health Court decides whether a person is fit for trial:

3. “118
   Decision about fitness for trial

3. (1)
   This section applies if—

3. (a)
   the Mental Health Court decides the person was not of unsound mind when the offence was allegedly committed; or

3. (b)
   because of section 117 or 117A, the court may not decide whether the person was of unsound mind when the offence was allegedly committed.

3. (2)
   The court must decide whether the person is fit for trial.

3. (3)
   If the court decides the person is unfit for trial, the court must also decide whether the unfitness for trial is permanent.

3. (4)
   This section does not apply if, under section 117(4), the proceeding against the person for the offence is discontinued.”

64. [64]
    Pursuant to s 118 (2) of the Act, I am obliged to decide “whether the person is fit for trial”. Section 685 of the Act provides that no party to the proceeding bears the onus of proof of any matter and that the matter must be decided on the balance of probabilities. 
65. [65]
    Although “fit for trial” is not defined in the Act, the criteria to be applied is based on R v Presser (‘Presser’),^[1] the seminal Australian case on fitness to plead and be tried.
66. [66]
    In Presser, the trial judge was concerned that the defendant might not be fit for trial and, based on the jury direction of Alderson B in R v Pritchard (‘Pritchard’),^[2] considered the issue of fitness in this way:

“[The test] needs, I think, to be applied in a reasonable and commonsense fashion. And 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.”^[3] (emphasis added)

67. [67]
    The Presser criteria have been universally adopted in Australia as the appropriate test for fitness for trial. The High Court considered the concept of fitness to plead and be tried in Kesavarajah v The Queen,^[4] where Mason CJ, Toohey and Gaudron JJ stated:

“In Reg. v. Presser, Smith J. elaborated the minimum standards with which an accused must comply before he or she can be tried without unfairness or injustice. Those standards, which are based on the well-known explanation given by Alderson B to the jury in R. v. Pritchard, require the ability (1) to understand the nature of the charge; (2) to plead to the charge and to exercise the right of challenge; (3) to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged; (4) to follow the course of the proceedings; (5) to understand the substantial effect of any evidence that may be given in support of the prosecution; and (6) to make a defence or answer the charge.”^[5] (citations omitted)

68. [68]
    The plurality continued: 

“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.”^[6]

69. [69]
    The purpose of the Presser criteria is to ensure that a defendant can get a fair trial and if that is not possible, the trial should not proceed.  
70. [70]
    The Presser criteria are to be applied in reasonable and commonsense way. The defendant must be able to follow the course of the proceedings in a general sense, but it is not necessary that he or she be capable of following the complexities of legal argument, forensic or expert evidence.
71. [71]
    In R v Rivkin,^[7] the New South Wales Court of Appeal stated that:

72. [72]
    In approaching the issue of fitness for trial, that a defendant is being represented by counsel is relevant as the majority of the High Court in Ngatayi v The Queen (‘Ngatayi’)^[8] acknowledged:

“…in deciding whether an accused is capable of understanding the proceedings so as to be able to make a proper defence it is relevant that he is defended by counsel. If the accused is able to understand the evidence, and to instruct his counsel as to the facts of the case, no unfairness or injustice will generally be occasioned by the fact that the accused does not know, and cannot understand, the law. With the assistance of counsel he will usually be able to make a proper defence.”^[9]

73. [73]
    As to the ability to instruct counsel, in Re T,^[10] Chesterman J (as His Honour then was) considered that an “exegesis of the concept ‘fitness to instruct counsel’ is provided by the judgment of Smith J in Presser” and went on to state:

“The terms of this exposition [Smith J in Presser] reveal a concern that an accused person must be able to understand, at least in general terms, the nature of his plight and the case brought against him. That is, the accused must appreciate what is meant by being on trial, and as well he must be capable of understanding the substance of the charge he faces.”^[11]

74. [74]
    Chesterman J then went on to refer to Pritchard, Ngatayi and R v Podola^[12] and concluded that to be fit for trial, a defendant must be:

“…able to answer the charge brought by the prosecution. To do so he must understand that he is on trial, and what that means, and he must understand the evidence led in support of the charge so that he can put forward whatever answer he has to it.”^[13] 

75. [75]
    In Re T, his Honour was not satisfied that the defendant’s paranoia and distrust of counsel made him unfit to instruct counsel:

“[The psychiatrist’s] concern was that the [defendant] would not give a balanced account of the facts to his lawyers. It is not, I think, necessary that an accused give such an account. It is enough, on the authorities, that he understands the evidence against him.”^[14]

76. [76]
    In R v House,^[15] Connolly J stated that the 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.”^[16]

77. [77]
    In R v M,^[17] Chief Justice de Jersey explained what the capacity to instruct counsel entails:

“Fitness for trial, in relation to the capacity to instruct counsel, posits a reasonable grasp of the evidence given, capacity to indicate a response, ability to apprise counsel of the accused’s own position in relation to the facts, and capacity to understand counsel’s advice and make decisions in relation to the course of the proceedings. It does not extend to close comprehension of the forensic dynamics of the courtroom, whether as to the factual or legal contest. For a person represented by counsel, fitness for trial of course assumes that counsel will represent the client on the basis of the client’s instructions. That the giving of such instructions may take longer because of intellectual deficit is a feature with which courts should and do bear.”^[18]

78. [78]
    In order to be tried fairly, a defendant need not appreciate the nuances of court procedure or the intricacies of the substantive law.  

79. [79]
    In R v Hayles (‘Hayles’),^[19] the issue for consideration was a ruling by the primary judge that the respondent was unfit for trial because he was “unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings” within the meaning of s 269H (c) of the Criminal Law Consolidation Act 1935 (SA) which states:

3. “269H—Mental unfitness to stand trial

3. A person is mentally unfit to stand trial on a charge of an offence if the person’s mental processes are so disordered or impaired that the person is —

3. (a)
   unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based; or

3. (b)
   unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or

3. (c)
   unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.”

80. [80]
    This section dealt with unfitness for trial and enshrined the Presser test. In Hayles, it was decided that the trial judge applied too stringent a test in deciding whether the respondent was able to follow the evidence or the course of the proceedings: 

81. [81]
    The length, complexity and the ability to endure a trial is a relevant factor to be taken into account. As Flanagan J (as his Honour then was) set out in Berg v Director of Public Prosecutions^[20] at [54]:^[21]  

“Having regard to the factors in Presser, as enounced in Kesavarajah and Eastman, it is clear that the ability to instruct counsel and endure the trial continue to be factors taken into account in determining one’s fitness for trial, throughout the entire trial process.”

82. [82]
    Mental unfitness is not to be regarded as an abstract concept; the question of a person’s fitness to stand trial is required to be determined having regard to the charge and the allegations on which the charge is based.
83. [83]
    Some offences are more complicated to understand than others. When considering fitness to stand trial, each of the particular charges and offences must be considered. Depending on the complexity of the charge, a person may be found unfit for trial in relation to some charges but fit for trial in relation to others. 
84. [84]
    In many cases where the issue of fitness for trial arises, particularly if the defendant has an intellectual impairment, the court will consider whether the defendant would be fit for trial if adjustments were made in the criminal proceedings to cater for the defendant’s deficits. Adjustments might include regular breaks, providing the defendant with frequent opportunities to consult with counsel, and requiring that counsel use simple language.  
85. [85]
    As de Jersey CJ said in R v M, the court will bear with a defendant to ensure that the trial is fair and contemporary courts are sensitive to the varying needs of those who come before them. In the same case, McPherson JA said that while there would no doubt be difficulties in conducting a trial of a person with an intellectual disability, the courts are not unaccustomed to such cases. Such accommodation might slow down the trial, even to a considerable extent, but that does not give rise to an insuperable obstacle.
86. [86]
    The issue will effectively be whether, with suitable adjustments, the defendant can receive a fair trial. As Sofronoff P said in YE v Director of Public Prosecutions (DPP) (Qld) (‘YE’):^[22]

“…the genius of the common law system is due, in part, to its ability to adapt its procedures to accommodate conditions such as those that may be presented by the appellant, and due also to the wide discretion that judges are given under that system to fashion trial proceedings to ensure that the trial is fair.”^[23]

87. [87]
    Every case will turn on its own facts and the expert evidence put before the court. 
88. [88]
    In the present case, there is a significant dispute between the expert witnesses as to GZW’s ability to follow the course of proceedings in a criminal trial and to make a defence to the charges.

89. [89]
    GZW has been professionally assessed on many occasions since 2012, and a significant number of reports are listed in the exhibit list. 
90. [90]
    At the hearing, three experts gave evidence:

    1. Dr Meg Perkins, clinical and forensic psychologist;
    2. Dr Heidi Zeeman, clinical neuropsychologist; and
    3. Dr Vinesh Gupta, psychiatrist. 
91. [91]
    Both Dr Perkins and Dr Zeeman performed psychometric testing on GZW and also had the benefit of previous reports. Their strong conclusion is that GZW is permanently unfit for trial. 
92. [92]
    On the other hand, Dr Gupta, psychiatrist, interviewed GZW twice and, on each occasion, it was his view that he was fit for trial. 

Dr Meg Perkins (psychologist)

93. [93]
    Dr Meg Perkins, a clinical and forensic psychologist, stated that GZW was exposed to alcohol and amphetamines in utero.
94. [94]
    He has been assessed many times since early childhood and suffers from a fetal brain injury which manifests as severe deficits in intelligence, language, memory, attention, executive functioning, adaptive functioning, academic achievement, and affect regulation. As a result of the prenatal exposure to alcohol, GZW is living with a moderate intellectual disability (thinking skills at approximately a five-year-old level), a severe language disorder, and severe deficits in other cognitive domains. Dr Perkins stated that GZW’s exposure to alcohol and methamphetamine in utero and his eight severe deficits in neurocognitive domains means he meets the criteria for a diagnosis of fetal alcohol spectrum disorder (‘FASD’).
95. [95]
    GZW has also suffered trauma and disrupted attachment. 
96. [96]
    In addition, GZW suffers from executive dysfunction which means that he does not have age-appropriate control over his thinking, emotions, or behaviour. He does not understand cause and effect, nor the consequences of his actions. He cannot plan for the future, but lives in the present, subject to his impulses.
97. [97]
    In summary, Dr Perkins stated that GZW is not fit to plead, due to his severe deficits in language and intelligence.
98. [98]
    Dr Perkins stated that her own assessment confirmed what had been demonstrated previously on multiple occasions from 2010 to 2020; that GZW has multiple severe developmental disabilities.
99. [99]
    She stated that GZW is functioning with thinking skills similar to those of a five or six-year-old child, but his social and practical skills are at a lower level than that, with his language skills at four years on one test. 
100. [100]
     Dr Perkins stated that GZW’s ability to understand the court process and the criminal justice system is severely compromised. In her report, Dr Perkins set out a verbatim transcript of GZW’s responses to prompts related to the Presser criteria for fitness to plead:

“What are you charged with? I can't tell you. Stolen car.

Is that charge serious? Yeah.

What does pleading guilty mean? Plead guilty to things I done.

What does pleading not guilty mean? That I never done it.

What happens if you plead guilty? Adjourn to next day ... next month.

What happens if you plead not guilty? Receive a longer time ... in here.

What is good about (advantage) pleading guilty? Front up ... I don't know.

What is bad about (disadvantage) pleading guilty? [GZW] looked puzzled.

What is good about pleading not guilty? No ... (looked puzzled)

What is bad about pleading not guilty? No bail.

Who are the important people in court? Don't know ... don't care. (after a pause) ...police prosecutor, lawyers, judge, people behind the desk ...

What do they do? Keep me in here for longer, prosecutor ... my lawyer trying to get me out, help me ... judge ... going by listening ... to certain people.

What is evidence? Footprints ... shit dropped

What evidence is there against you? Don't know ... bag, some bag ...

[GZW] looked very confused at this point and disengaged to some extent.

Can you tell me what you want your lawyer to do? Oh fuck ... try to get me out

Do you trust your lawyer? Yes

Do you think the court will be fair to you? Yeah, they'll be fair ... sometimes bit of              bastards ... not let me out ... go against me.

[GZW] was asked about being "in" and "getting out" and he said "strict in here ... they say no swearing, don't swear" and "kick back ... play cards". 

When asked what was good about getting out, he said "free world!"”

101. [101]
     Dr Perkins concluded that the evidence relating to GZW’s widespread brain dysfunction is incontrovertible. He has severe deficits in eight different brain domains assessed over a number of years, effectively by a multidisciplinary team of allied health professionals. 
102. [102]
     She stated that the cause of GZW’s severe brain damage and pervasive brain dysfunction appears to be the combined effect of prenatal exposure to both methamphetamine and alcohol.
103. [103]
     Dr Perkins set out GZW’s neurocognitive deficits: 

3. (a)
   Intelligence – moderate intellectual disability, thinking skills age six years;

3. (i)
   Working memory – 1^st percentile (99% of peers would score higher)

3. (ii)
   Processing speed – 1^st percentile

3. (iii)
   Full scale IQ – less than 0.1 percentile (extremely low)

3. (b)
   Language disorder – severe/profound 1st percentile;

3. (i)
   Comprehension of Instructions NEPSY-II < 1^st percentile

3. (c)
   Memory – NEPSY-11 severe deficit < 1^st percentile;

3. (d)
   Attention – diagnosis of ADHD (severe deficit);

3. (e)
   Executive functioning – ADHD + neuropsychological tests (severe deficit);

3. (f)
   Adaptive functioning – ABAS-3 severe deficits in practical and social skills;

3. (g)
   Academic achievement – WIAT-III numerical operations age six years;

3. (h)
   Affect regulation – WASC-Y depression medium to high.

104. [104]
     Dr Perkins stated that GZW’s disabilities are due to abnormalities in brain structure and function and will be life-long: 

     1. He will always live in the present moment, simply reacting to the social and physical environment.  
     2. As recommended by an occupational therapist, he needs to be cared for 24 hours a day in specialist disability accommodation, with other people providing meals, a warm bed, and clean clothes, and organising appropriate prosocial activities for him, such as playing football and making art.
     3. GZW is not capable of self-care, meal preparation, making prosocial friends, engaging in prosocial activities, earning a living, managing money, maintaining an intimate relationship, or surviving in the community on his own, without significant risk to himself and/or others.  
     4. He is not even capable of caring for himself appropriately in custody, as has been noted, needing to be reminded to shower, to wear clean clothes, and to brush his teeth, and eating his food off the table instead of using a plate.
105. [105]
     In summary, Dr Perkins stated that GZW’s chronic lifelong severe language impairment means that he is not able to understand abstract concepts such as the difference between naughty and seriously wrong, the law, justice, guilt, defence, victim, empathy, punishment, rehabilitation, remorse, or restoration. 

Presser criteria

106. [106]
     Dr Perkins noted the Presser criteria for fitness to plead involve understanding of the charges, the court process and proceedings, and GZW has the understanding of a very young child, certainly no more than a five or six-year-old.
107. [107]
     Dr Perkins stated that she does not believe that GZW can follow what is happening in court. She noted that GZW:

     1. could not follow or remember a simple story about a boy climbing a tree; and 
     2. did not identify video footage as evidence in his case, even though he had watched it very recently, referring to “some bag” as being the evidence in his case. 
108. [108]
     Dr Perkins stated GZW certainly does not have the capability to make any decisions about his defence in a criminal matter.
109. [109]
     She referred to a fitness for trial assessment completed by a senior social worker in 2019 which stated that GZW said “I don’t know” or “I don’t remember” to all the questions, but he was able to answer appropriately when given visual prompts.
110. [110]
     A 2019 assessment stated that:

     1. GZW understood the “nature and purpose of the assessment” and the “limits of confidentiality”; and
     2. he was “aware of his rights in the proceedings”, 
111. [111]
     Dr Perkins noted that these findings are inconsistent with the results of the assessments undertaken by speech and language pathologists. 
112. [112]
     The 2019 fitness for trial assessment also stated that GZW’s “memory appeared intact”; this is not consistent with the findings in formal testing. 
113. [113]
     In relation to GZW’s memory capacity, Dr Perkins referred to a number of tests, including:

     1. the Digit Span test of auditory memory on the WISC-IV;
     2. the visual memory test on the TVPS test of visual perception; and
     3. the Narrative Memory test for five to 10-year-olds (NEPSY-11).
114. [114]
     These results indicated that GZW has a severe deficit in memory. 
115. [115]
     Dr Perkins gave evidence at the hearing and maintained her view that GZW is unfit for trial.
116. [116]
     Dr Perkins highlighted the ability for GZW to follow what is happening in court as being particularly significant to her conclusion that GZW is unfit for trial.
117. [117]
     She said that when GZW is assessed on standardised tests, he does not seem to remember what was previously said. So, in order to follow what is going on in court, he would need to remember what was said in the previous sentence and follow sequentially. However, GZW does not seem to be able to do that.
118. [118]
     Dr Perkins acknowledged, by reference to Dr Gupta’s 2024 report, that GZW is understanding more in 2024 than he did in 2021.
119. [119]
     Dr Perkins stated GZW has been assessed year after year by different, multidisciplinary professionals, and his language skills are so delayed or underdeveloped that, in her opinion, it would be extremely difficult for him to be able to:

     1. listen to what is going on in court;
     2. be able to take it in;
     3. be able to give instructions based on what is going on; and
     4. also have a reasonable amount of recollection of what has gone on earlier in the course of a hearing. 
120. [120]
     Dr Perkins thought that GZW could understand what “I did it” or “I didn’t do it” means.
121. [121]
     However, he would not be able to follow the narrative description of the alleged offences and then respond appropriately. That is, by giving instructions to his legal representatives, and if necessary, by giving evidence. 
122. [122]
     In terms of language, Dr Perkins stated that it is well-known that people who have FASD are likely to have quite good expressive language. However, she stated that their receptive language is a completely different brain function and is often much less well developed.
123. [123]
     Dr Perkins noted people with FASD may present quite well as far as their expressive language is concerned. However, a person’s receptive language cannot be determined unless they are having formal assessment. And GZW’s receptive language cannot be judged by his expressive language. 
124. [124]
     Dr Perkins stated GZW’s working memory was severely impaired. “Working memory” means holding something in the mind just for a few minutes so that the information can be used. If GZW heard something and he needed to hold that in his mind for minutes so that he could then discuss it with his legal representative, his working memory deficit would mean it is likely he would not remember.
125. [125]
     He could not be expected to follow the complex exchanges in the courtroom. However, Dr Perkins agreed that if his lawyers spend enough time with him to get a very clear indication of what his position is about particular events then, of course, they can advance that cause for him, without him having to follow in real time what is being said by the witnesses.
126. [126]
     In terms of his accounts that he gave Dr Gupta, Dr Perkins stated that GZW was able to access his long term memory. 
127. [127]
     Dr Perkins acknowledged that her assessment with GZW was very tight and very rushed. He did not want to be there. His legal representative was there and was having to reassure him and persuade him to continue with the assessment. It was a very stressful for him at the time.
128. [128]
     Dr Perkins stated GZW is capable, up to an extent, of processing concrete ideas,^[24] as long as suitable language is used in expressing them to him. 
129. [129]
     Some testing showed deficits in his executive functioning which relates to his ability to organise all the information and decide about what to do with it. If GZW has frequent breaks, and his legal representatives break down each piece of evidence (in a very simple way), then Dr Perkins agrees that his ability to consolidate all of that information, and then make an informed decision about what to do with the information as a whole, is severely limited.
130. [130]
     In the context of a trial, if something new came up on day one and he manages to take it in, recall it, give instructions to his lawyers and then he gives evidence on day two, Dr Perkins did not believe he would have an appreciation of all the evidence that is against him by the time he gives his evidence on day two, or everything that has happened.
131. [131]
     Dr Perkins stated that GZW does not understand the implications of pleas and he would be incapable of taking advice about, say, the benefits and disadvantages of either option, weighing that up and then making an informed decision about it.
132. [132]
     Dr Perkins stated that GZW has a better understanding and familiarity of court processes now as compared to when she saw him in 2021. It is possible GZW is regurgitating rehearsed information and that does not reveal anything about his receptive language. She stated that:

“…people assess somebody’s understanding on their expressive language. They talk about things and they say, yeah, they know what’s going on. But it’s extremely difficult to know what they’ve actually understood. And that’s why we do these standardised tests and say, well, you know, he’s got the understanding of a four year old, for example. The – a typically developing four year old child would have that amount of understanding. And we would never expect a four year old child to follow court proceedings. So it’s kind of a logic from the point of view of the – the psychology of it. It’s like if that’s the level of his understanding, how can you possibly do that? But then I do understand the – what they say about the law. That it's – he only needs a very basic understanding. So you’re kind of balancing these two things.” 

133. [133]
     Dr Perkins stated that GZW’s memory has not been extensively assessed. There are many different things that could be assessed that have not been assessed. But Dr Perkins stated that GZW’s working memory is severely impaired. In real time he would struggle to remember what is going on as the trial was proceeding, whereas things that have happened in the past that are personally relevant and important to him, he will tend to remember.
134. [134]
     Dr Perkins acknowledged that there is no evidence to say that his receptive language is poorer than his expressive language because they have not been compared.

Dr Heidi Zeeman (psychologist)

135. [135]
     Dr Heidi Zeeman is a clinical neuropsychologist who assessed GZW on 17 July 2023. 
136. [136]
     Dr Zeeman’s mental state examination identified that GZW was willing and able to engage in her assessment of him and participated in all aspects of testing without complaint. There was no indication of disingenuous or atypical responding, as consistent with valid performances. GZW was not inappropriate or hostile towards her. 
137. [137]
     GZW presented as having below average limits of intellectual ability, as confirmed on psychometric assessment. 
138. [138]
     Emotionally, Dr Zeeman stated that he impressed as naïve but otherwise stable and responsive.
139. [139]
     He was observed to experience high hyperarousal as consistent with attention deficit (fidgeting, distractibility) at times, preventing his participation in testing. 
140. [140]
     Dr Zeeman set out the following in her report:

3. (a)
   Cognitive assessment identified GZW as being of “Moderate – Severely impaired” intellect according to standardised testing. 

3. (b)
   GZW demonstrated:

3. (i)
   a very poor grasp of communication skills and vocabulary consistent with Grade 1 level of achievement in word reading and spelling.

3. (ii)
   limited problem solving capacity and executive function, including impaired decision making and judgement.

3. (iii)
   poor attention span and difficulties processing abstracted information, impaired learning ability and encoding for auditory verbal information. 

3. (c)
   GZW’s working memory was deficient as prohibiting his ability to hold two ideas in his mind at any one time.  

141. [141]
     GZW’s pattern of symptoms and results of current psychometric testing together with his lifespan assessment, mental status examination, clinical history and verified previous psychological assessments appear consistent with the DSM-5 diagnostic criteria for the following:

     1. Unspecified Neurocognitive Disorder (FASD related);
     2. Intellectual Developmental Disorder (moderate – severe); 
     3. Specific Learning Disorder (reading, written expression, arithmetic);
     4. Attention Deficit Hyperactivity Disorder (hyperactive) Severe; and
     5. Complex Childhood Trauma (Post-Traumatic Stress Disorder).
142. [142]
     Dr Zeeman stated that overall, based on her assessment of 17 July 2023, she is of the opinion GZW does not have capacity to participate in a trial process. 
143. [143]
     Dr Zeeman stated that, on the day of this assessment, GZW did not meet the minimum Presser criteria. 
144. [144]
     Further, she stated that his neuropsychology evidenced severe impairment across multiple domains of functioning, in addition to limited concentration capacity. 
145. [145]
     In her opinion, he was grossly impacted by cognitive disability, he was profoundly inattentive, and demonstrated severely impaired ability to learn new information when repeated. He also demonstrated poor expressive and receptive communication preventing his understanding of basic instructions.  
146. [146]
     These cognitive impairments, neurodevelopmental intellectual disability, neurocognitive disorder and learning disorder are permanent in nature and are not treatable. 
147. [147]
     On the basis of GZW’s neurodevelopmental condition (intellectual disability) with combined language and memory impairment, Dr Zeeman predicts his unfitness for trial to be permanent. 
148. [148]
     Dr Zeeman addressed each of the Presser criteria in her report.

Understanding of the nature of the charges (knowledge or account of the index offence/s)

149. [149]
     GZW provided a statement of the nature of some, but not all, charges against him as consistent with collateral information. 
150. [150]
     He was able to provide Dr Zeeman an explanation of the nature of the alleged offences and provided broad detail consistent with collateral information. 
151. [151]
     However, he was less certain of timelines. He did not consider his charges to be as serious as other offending. 

Ability to plead and exercise the right of challenge

152. [152]
     GZW stated that to enter a plea was to “plead guilty”. He did not provide an adequate description of a not guilty plea or its consequences. 
153. [153]
     He could not describe a “verdict”. 
154. [154]
     He was unsure of the right to challenge jurors which was beyond his comprehension.

Ability to understand the nature of the proceedings and follow the course of the proceedings

155. [155]
     GZW had a poor understanding of the roles of court personnel, and could not describe the role of the jury, prosecution or “going to trial”. 
156. [156]
     He understood it was the judge’s job to “listen”. 
157. [157]
     He stated it was his lawyer’s job to “try to get me out”. 
158. [158]
     He was aware of the need to “tell the truth” in court but could not describe an oath and could not tell Dr Zeeman why it would be wrong to lie in court under oath.
159. [159]
     He was able to draw a basic, and spatially correct diagram of the court room.

Understanding of the substantial effect of evidence

160. [160]
     GZW had a sound understanding of evidence that could be submitted in court, including:

     1. witness statements;
     2. police documentation; and
     3. media evidence (clothing, photos, videos, fingerprints). 
161. [161]
     He stated a “witness” was “a victim” and then stated, “a person who is dobbing on you”. His responses were confused and naïve.

Capacity to make a defence, instruct counsel, inform the court of their version of the facts and decide on what defence they will reply upon and to make their version of the facts known to the court and counsel

162. [162]
     GZW was not able to identify all relevant information that would be important to discuss with his solicitor when questioned during his interview with Dr Zeeman. 
163. [163]
     He was able to produce an account of the events relating to some but not all charges.
164. [164]
     Ultimately, Dr Zeeman found that GZW did not meet the minimum Presser standards for fitness.
165. [165]
     At the hearing, Dr Zeeman gave evidence and maintained her view that GZW is permanently unfit for trial.
166. [166]
     Dr Zeeman’s testing showed that GZW’s:

     1. expressive and receptive language were below the third percentile, which is extremely low; and 
     2. sentence memory was below the third percentile. 
167. [167]
     Dr Zeeman stated that based on the functional testing, she determined that GZW was actually quite impaired, despite his seemingly intact social façade and knowledge, or at least his ability to recite his charges. 
168. [168]
     She was not able to say with any certainty what the aetiology of GZW’s deficits might be, other than that there is consistent and verified reporting over the lifespan assessment. 
169. [169]
     Dr Zeeman noted GZW was fully engaged in the assessment on the day she saw him so there was no question as to withdrawal or intoxication. She felt that GZW was giving his best effort on the day.
170. [170]
     Dr Zeeman also noted that GZW had multiple breaks during his assessment with her.
171. [171]
     Dr Zeeman accepted GZW understands the nature of the charges and can give a personal account of the charges against him.
172. [172]
     However, Dr Zeeman did not think GZW met the other Presser criteria, such as the ability plead and exercise the right of challenge, understand the nature of proceedings and follow the course of proceedings, understand the substantial effect of the evidence or have the capacity to make a defence and instruct counsel.
173. [173]
     She had doubts that GZW would be able to understand concepts such as the ability to plead and exercise the right of challenge.
174. [174]
     Dr Zeeman stated that during her interview with GZW, she broke things down very simply and gave GZW multiple choice questions to test the Presser criteria because she knew GZW’s vocabulary was extremely low.
175. [175]
     However, even after Dr Zeeman provided low level explanations of court concepts such as oaths, verdicts and juries, GZW was unable to answer Dr Zeeman’s questions which suggested to Dr Zeeman he is not going to be able to retain the explanations of those terms regardless of his level of education.
176. [176]
     In Dr Zeeman’s opinion, GZW not only had difficulty in communicating and following things because of his distraction and inattention and his intellectual disability, but because he cannot remember.
177. [177]
     Dr Zeeman noted giving instructions to lawyers involves episodic memory but also being able to integrate information, generalise information and communicate with that information and Dr Zeeman did not observe any evidence of those skills in GZW on the day of the assessment.
178. [178]
     Dr Zeeman stated GZW does have a procedural memory in relation to going to court, appearing before a judge and speaking to a lawyer. GZW can answer questions about those concepts because they are personally relevant to him.
179. [179]
     However, Dr Zeeman stated GZW has difficulty with his semantic memory and integrating novel information. For example, GZW may have difficulty following trial proceedings and understanding the concept of a jury because he has never experienced a criminal trial before and is not familiar with a jury.
180. [180]
     Dr Zeeman noted even if scaffolding was put in place, GZW has an amnestic syndrome and rapid loss of information. Because of this amnesia of some kind, it is difficult for GZW to be able to generalise across contexts and hold bits of information together.
181. [181]
     Dr Zeeman noted that even after taking multiple breaks during her assessment of GZW, he was not able to perform at a better standard, indicating that his neurodevelopmental problems are very pervasive. 
182. [182]
     Further, Dr Zeeman noted the suggestion of video recording evidence for GZW to review at his own pace was a worthwhile consideration, but in her opinion would not cure the issue.
183. [183]
     However, Dr Zeeman was not confident that recording evidence would solve any particular issues because GZW would have a very partial memory of what he sees and then he would lose earlier components as he watches more tapes. 

Dr Vinesh Gupta (psychiatrist)

184. [184]
     Dr Vinesh Gupta is a forensic and child and adolescent psychiatrist who assessed GZW on 2 May 2023 and 19 February 2024. These assessments were done via audio visual link.
185. [185]
     At Dr Gupta’s assessment of GZW on 19 February 2024, Dr Gupta reported that GZW presented as an [redacted] year old Aboriginal male who looked his age. He understood the purpose of the assessment and interview.
186. [186]
     Notably, at this subsequent interview, he recognised Dr Gupta from the previous interview and spontaneously stated:

“I think I am old enough to know all this stuff. I am perfectly fine. One doctor said I didn’t while you said I knew it (court) and there’s nothing wrong with me.”

187. [187]
     It was Dr Gupta’s opinion that GZW’s clinical presentation was consistent with a diagnosis of intellectual impairment, moderate. He has historically been diagnosed with post traumatic stress disorder (‘PTSD’), mental and behavioural disorders due to his use of volatile solvent, mental and behavioural disorders due to his use of cannabis, socialised conduct disorder and expressive and receptive language disorder.
188. [188]
     Dr Gupta was of the opinion that GZW’s speech disorders could be explained and are consistent with his developmental delays and do not necessarily provide any additional information around his difficulties with cognition or speech. Dr Gupta noted GZW has also been determined to have FASD.
189. [189]
     At the time of Dr Gupta’s assessment, GZW denied using any illicit substances as he had been at the detention centre and stated that he had not had access to any illicit substances.
190. [190]
     In Dr Gupta’s report, he addressed each of the Presser criteria.   

Understanding of the nature of the charges

191. [191]
     According to Dr Gupta, GZW understood the charges against him. He was able to give a description of some of the charges and was unable to recall some. He also disputed some of the charges and was able to provide a coherent account of why he believed he was not guilty of them.
192. [192]
     GZW also understood that he did not have to discuss charges with Dr Gupta. When asked about the reason for his arrest on this occasion. He stated:

“Been in custody 4-5 months. I can’t tell you that (charges) because they are my new charges. I am not going to admit to these. They are juvenile charges, unless they sentence me for these, then I can tell you.”

Understanding the requirement to plead to the charge or the effect of a plea

193. [193]
     GZW stated that he could plead “guilty” and “that means I have done it”. He further stated, “If I am not guilty that means I didn’t do it”.
194. [194]
     He further stated that the outcome could be “bail or parole.”
195. [195]
     He further stated that he would be free to go home if found not guilty.

Ability to understand the nature of proceedings and follow the course of proceedings

196. [196]
     GZW understood the purpose of court stating that he had to go to court to decide whether he was guilty or not.
197. [197]
     GZW sat through the interview with Dr Gupta without any evident issues. He engaged well and was polite and pleasant with no evidence of difficulties following the communication. He understood the purpose of the interview and presented with an ability to follow the course of the trial. When specifically asked if he believed he might have difficulties in court, GZW stated:

“No I don’t. Been to court too many times. Some people think there’s something wrong with me. I am perfectly fine. I only have ADHD, that’s why they are sending me to mental health court. Been in the system since 10 years old.”

Ability to identify the office bearers of the court or their roles

198. [198]
     GZW was able to identify the office bearers of the court and their roles. He stated that the judge decides whether he is guilty or not. During the assessment in 2023, GZW stated that he had a lawyer through legal aid though did not know their name. When asked about his lawyer’s role, GZW stated, “I don’t know. Try to get me a release date or get me bail. I have done enough months. Six months already.”
199. [199]
     On discussions around the role of the prosecutor, GZW indicated:

“She’s trying to stop me from getting bail. She was calling me an animal and dog because she doesn’t like me. She tried to put words in the judge’s mouth to try and keep me in because she said I was a risk to the community, but I am not like that.”

200. [200]
     During the assessment in February 2024, GZW stated that the judge “listens to both sides, prosecutor, police and lawyer. He decides whether I am a risk to community and be jailed or no risk and get bailed or get community.”
201. [201]
     GZW described the prosecutor’s role as “says to Judge, don’t let me out. Tries to make me look bad. They try and say I am guilty of it.”
202. [202]
     In relation to the role of his lawyer, GZW indicated, “Try get me parole, get me bail or something. Help me be not guilty. There are some charges I am guilty of.”

Understanding the substantial effect of evidence presented by the prosecution in the trial

203. [203]
     GZW had stated in 2023 to Dr Gupta, “Judge decides I am guilty or not by history, charges, believe the coppers and what’s on paper, footage, fingerprints and DNA.”
204. [204]
     In the 2024 interview, GZW stated that the judge decides whether he is guilty or not based on evidence and cited fingerprints and cameras as potential evidence.

Ability to exercise the right of challenge

205. [205]
     GZW did not understand the role of the jury and did not present with the ability to challenge jurors.
206. [206]
     Dr Gupta noted in his report that there will be no jury in GZW’s trial as he is charged as a minor, though this is incorrect. No attempts were made by Dr Gupta to explain the role of the jury to GZW during this assessment.

Capacity to make a defence

207. [207]
     GZW presented to Dr Gupta with the ability to defend himself in court. He stated that he could talk to his lawyer if he had any concerns in court.
208. [208]
     Applying the Presser criteria, GZW did understand the nature of the charges against him. He understood the court process and the roles of the office bearers of the court. He understood the pleas available to him and the outcomes associated with the pleas.
209. [209]
     GZW presented with an ability to challenge in court and was able to provide an explanation around evidence and its role in the court process.
210. [210]
     It is Dr Gupta’s opinion that GZW is fit for trial and of sound mind for all the charges.
211. [211]
     In Dr Gupta’s opinion, it would be important to clarify some of the questions raised by Dr Zeeman regarding GZW’s fitness for trial. 
212. [212]
     To Dr Gupta, it seemed GZW had a good understanding of the court process and fulfilled the Presser criteria during both of his assessments despite his cognitive limitations. Dr Gupta believed some of his ability to retain and process the information around the court process might be due to his procedural memory and experiential learning from multiple exposures to the court process.
213. [213]
     GZW was again able to respond to all the questions around fitness during his interview with Dr Gupta without the need for prompting or education. It is likely that he has developed an understanding of the court process due to his repeated presentations and likely discussions with his lawyers over a period of time.
214. [214]
     As far as the question of soundness is concerned, it is important to note that he was aware of his actions and the consequences associated with his actions. GZW disputed some of the charges and disagreed with the statement of facts.
215. [215]
     He acted of his own volition and was also under the influence of alcohol and/or other illicit substances during the alleged offences.
216. [216]
     At the hearing, Dr Gupta gave evidence and maintained his view that GZW was fit for trial.
217. [217]
     In Dr Gupta’s opinion, GZW presented with an intellectual impairment. Based only on his interviews with GZW, Dr Gupta would say GZW has a mild intellectual impairment.
218. [218]
     However, Dr Gupta stated that, taking into account all the factors presented to him in addition to his clinical interview, his clinical impression was that GZW has a moderate intellectual impairment.
219. [219]
     Dr Gupta did not have the evidence to support whether GZW has FASD or not. 
220. [220]
     However, it did not matter, in Dr Gupta’s opinion, whether GZW’s cognitive deficits were because of FASD, or his alcohol and substance misuse, as this does not have a material impact on the determination of GZW’s fitness for trial.
221. [221]
     During his interviews with GZW, Dr Gupta gave GZW the basic facts of the charges against him and then asked him to repeat his version of events. 
222. [222]
     In Dr Gupta’s opinion, GZW clearly had a recollection of the offences. For example, in response to the assault police officer charge, GZW gave Dr Gupta an explanation that he did not assault the police officer and that he was defending himself. This suggested to Dr Gupta that GZW has the ability to understand the charges, to follow what is being discussed, and to also present with a proper defence based on what is being discussed.
223. [223]
     At some times, Dr Gupta stated GZW did struggle to provide a version of events but that this was not due to his cognitive defects, but simply because he could not recall the circumstances of a particular offence.
224. [224]
     In Dr Gupta’s opinion, GZW understood the charges, he was able to give an account to Dr Gupta and he knew what they were talking about. It did not matter to Dr Gupta whether GZW was recalling reading about the charges or recalling the circumstances of the offences as rehearsal is part of being able to retain, comprehend and then regurgitate information.
225. [225]
     Dr Gupta stated GZW was not giving a simple regurgitation of what Dr Gupta was telling him, but that he was able to differentiate what he thought was a correct version of what happened. He was able to dispute some of the facts, which he would not be able to do if it was a simple regurgitation of what he was being told.
226. [226]
     Dr Gupta maintained that GZW understood the charges and was able to give a version of the charges as he told Dr Gupta things he was not being asked about, such as expressing remorse because he did not realise one alleged offence involved children.
227. [227]
     It was not surprising to Dr Gupta that GZW could not recall all of the events because, at the time of all of the charges, he was using drugs.
228. [228]
     Dr Gupta stated it is well known that when people are under the influence of drugs, they can recall some circumstances during their alleged offences, but they may or may not be able to recall the entire chronology of events.
229. [229]
     In Dr Gupta’s opinion, based on his interviews with GZW, GZW was able to understand, comprehend and analyse information to the extent that he was able to put different times and assessments together. He was able to say whether something in the past had an impact on now, or whether one of the reports was wrong. He was able to identify that one of the reports said he was “not good to go to court” and Dr Gupta’s report said “he was good to go to court”. 
230. [230]
     In Dr Gupta’s opinion, GZW clearly demonstrated an ability to retain, analyse and comprehend information and then respond to questions being asked of him.
231. [231]
     Dr Gupta noted that fitness for trial can be impacted by cognitive defects, but that cognitive deficits in themselves do not determine whether a person is fit for trial.
232. [232]
     Dr Gupta stated that because GZW did not engage in the cognitive testing of Clinical Neuropsychologist Debbie Anderson or Dr Perkins, the assessments may not be a true reflection of his abilities.
233. [233]
     Dr Gupta did not do any cognitive assessment or neuropsychological assessments to test GZW’s memory as he is not trained in performing those tests.
234. [234]
     However, Dr Gupta stated it was evident GZW could retain information and was able to convey it back to him and engage in meaningful discussion.
235. [235]
     In Dr Gupta’s interviews with GZW, he did not observe that GZW was not engaged.
236. [236]
     In Dr Gupta’s opinion, the cognitive testing completed by psychologists demonstrated his level of functioning at the time of the test and that his range of ability may depend on the context, situation, and wellbeing at the time.
237. [237]
     Dr Gupta stated the reports demonstrate that if GZW was to engage better, his cognitive abilities are slightly higher.
238. [238]
     Despite GZW’s cognitive deficits, Dr Gupta was still satisfied GZW demonstrated in the two interviews his ability to attend to, comprehend, retain and use different parts of information from the past and to express what he wants to express.
239. [239]
     Based on his interviews and assessment, Dr Gupta believed GZW would be able to follow court proceedings.
240. [240]
     However, Dr Gupta noted that it would be helpful if the court had frequent breaks, and if GZW’s lawyers were able to take time to explain things to him in simple language and make sure that he was not responding back in yes or no answers so he was able to actually convey what he understood from the discussion.
241. [241]
     In Dr Gupta’s opinion, it would be important to go through those steps with GZW and Dr Gupta believed GZW has the ability to go through a trial if those arrangements were put in place.
242. [242]
     Dr Gupta was of the opinion that the frequency of breaks would depend on whether GZW was already familiar with evidence. If new evidence was raised in the trial, time would need to be taken to go through the evidence with GZW to assess his understanding.
243. [243]
     Dr Gupta did not attempt to explain to GZW the role of a jury, the right to challenge or the right to elect to have a judge only trial because he did not believe as a juvenile, GZW would have a jury trial.

The Crown’s submissions

244. [244]
     The Crown submits that GZW was not of unsound mind in relation to all charges. The Crown further submits that the court may not determine unsoundness of mind for charges 11 and 14 because there is a substantial dispute of fact.
245. [245]
     The Crown submits that GZW is fit for trial.
246. [246]
     The Crown submits GZW satisfies each of the Presser criteria as GZW need not understand the law, forensic dynamics of the trial or the complexities of the evidence.
247. [247]
     It was noted that GZW has legal representation and there is no suggestion he will not be represented at trial. Therefore, GZW need only be able to convey his version of the events to his defence counsel to follow the proceedings in a general sense. The Crown submits the report and evidence of Dr Gupta support the conclusion GZW can do so.
248. [248]
     The Crown notes Dr Perkins held the view that GZW cannot cope with an accumulation of knowledge; he can make concrete decisions but cannot go to a level of abstraction that might be required to deal with a plea of guilty.
249. [249]
     However, the nature of the charges are such that they involve concrete concepts; for example, whether GZW took property or had a knife. All that is required by GZW is to accept or deny that he has done each of the actions. With suitable scaffolding, the Crown submits the concerns of Dr Perkins can be accommodated because GZW is capable of forming concrete views on clear matters.
250. [250]
     In practical terms, the defendant rarely exercises their right of challenge and it is usually counsel who are presumed to have authority. The Crown notes there is no reason why GZW could not sight and be taken through the jury list and sight the panel in advance.
251. [251]
     In the Crown’s submission, GZW need only understand that the purpose of the trial would be to determine whether GZW did the actions constituting the alleged offences. Dr Gupta’s report supports the view that GZW could be assisted by counsel to comprehend the concept of a jury.
252. [252]
     The Crown submits that all issues raised by Dr Perkins and Dr Zeeman can be accommodated through variations to the trial process.
253. [253]
     It was accepted that GZW has a limited working memory but the Crown submits that accommodations could be made to assist GZW such as video recording evidence, giving notice of questions that will be asked to other witnesses and giving notice of questions to be asked of GZW if he is to be cross-examined such as in YE. In the Crown’s submission, these accommodations would remove the need for GZW to use his working memory.
254. [254]
     Another suggestion was to prohibit the use of leading questions to the defendant in cross examination as in Stack v Western Australia.^[25]
255. [255]
     In the alternative, the Crown submits that any unfitness of GZW should be found to be temporary. This is because the testing of GZW has focussed on his language skills and if there was another way he could communicate, the issue of fitness for trial would need to be revisited once he has acquired those skills.

GZW’s submissions

256. [256]
     Counsel for GZW submits there is no doubt that GZW suffers from significant intellectual impairments. These deficits are such that the court would be satisfied on the balance of probabilities that he fails to meet the Presser criteria.
257. [257]
     Should GZW elect to proceed to trial, it is submitted that his significant impairments in working memory, attention, verbal comprehension and reasoning will prevent him from following the course of proceedings.
258. [258]
     It is submitted that a trial for each offence of robbery would be expected to take between two and three days. As a result of his deficits, GZW will be unable to properly absorb, recall and/or process new or amended information presented orally during the trial. This, in turn, will prevent him from adequately instructing his lawyers during the trial.
259. [259]
     Counsel for GZW submits that his impairments would prevent him from responding to new information if witnesses’ accounts grow or change throughout the trial.
260. [260]
     GZW’s counsel submits that the court should accept the opinions of Dr Zeeman and Dr Perkins over Dr Gupta.

Dr Till’s advice

261. [261]
     Dr Till is clinical neuropsychologist. In Dr Till’s opinion, this matter hinged on how the functional outcomes of GZW’s disorders impacted his ability to reasonably engage in the process of a trial and to integrate information in order to direct his legal counsel.
262. [262]
     Dr Till’s advice was that GZW has an identified intellectual disability with the functional implications of that being around his working memory and his ability to learn, remember and act reasonably on information.
263. [263]
     Dr Till also advised GZW has a diagnosis of ADHD which affects his attention and concentration and his ability to stay engaged in lengthy or challenging processes.
264. [264]
     Dr Till further advised GZW has language difficulties when following conversations that go beyond the simple.
265. [265]
     Dr Till raised concern about GZW’s ability to give evidence of his version of events during a trial. For example, even if questions were written out to GZW, Dr Till noted GZW would still have difficulty responding to follow up questions.
266. [266]
     GZW would have difficulty engaging with information in a reasonable manner in order to give his opinion of events and direct his legal counsel.
267. [267]
     Ultimately, Dr Till’s advice was expressed in this way:

“The challenge for me in this is in the trial process, even if questions were frontloaded by way of written – you know, written questions to him that he was engaged with by his legal counsel, how would he respond to anything that follows up from that? If he was to respond to a question in the way that necessitated additional questioning, how would he respond to that? Would he be able to engage in that in a – in a reasonable manner in order to – to, essentially, give his evidence about – about his opinion of events.

So that, to me, is one of the significant questions and from that, the integration of information to – you know – to direct his legal counsel. And I don’t think there’s any clear answer to that. I think it’s just a very complex question. And – and that – for me, the – the fact that it is so complex and there is not a – not a solid leaning towards his ability to do it, that raises concerns for me about his ability to be fit for trial. So I wish that I could provide a much more concrete explanation, but I – but that’s my interpretation of that.”

268. [268]
     Dr Till noted GZW has been assessed since the age of seven-years-old and the evidence has been fairly consistent across that time. In Dr Till’s opinion, there is no sign that there has been, or that in the future there would be, a significant and reliable change in GZW’s intellectual or language abilities.
269. [269]
     As such, Dr Till did not consider that any unfitness for trial would be temporary. In that respect, he disagreed with Dr Harden’s advice, noting it would be unlikely that GZW would experience rapid development in coming years.

Dr Harden’s advice

270. [270]
     Dr Harden is a psychiatrist and his advice was that there was agreement that GZW has an intellectual impairment and a speech and language difficulty which is either commensurate with, or worse than, his intellectual impairment.
271. [271]
     Dr Harden noted that the GZW has differential abilities in relation to different kinds of memory.
272. [272]
     For example, Dr Harden noted that Dr Zeeman gave evidence that GZW has a very low uptake of novel material that is not relevant to him.
273. [273]
     However, Dr Harden noted there was agreement between the clinicians who gave evidence that GZW’s strongest memory is his episodic memory in relation to personally salient events.
274. [274]
     Dr Harden noted that episodic memory is most relevant to the Presser criteria for uncomplicated offences such as the alleged offences in this case.
275. [275]
     Dr Harden noted that the nature of the alleged offences were not cognitively complex matters, as compared to an offence such as stalking, and did not require abstract thought.
276. [276]
     On the narrowest of margins, Dr Harden preferred the evidence of Dr Gupta that GZW is fit for trial. He expressed his advice in this way:

“On the narrowest of margins, I would advise you to prefer the overall opinion of Dr Gupta regarding fitness, but it is on the narrowest of margins, your Honour.”

277. [277]
     Dr Harden also raised whether, if GZW is found unfit for trial, it should be temporary unfitness:

“The question of temporary unfitness is interesting, but not for the reasons the DPP raises it. The reason it’s interesting is because of his age. And we know, at this stage of brain development, we often seen relatively rapid changes in peoples’ abilities.

And I’ve certainly quite a number of cases of people who were clearly unfit at, say, 16 and then are clearly fit at 25, because they sit in that area where your brain continues to development and they then become more able as time goes by. And that also could be an explanation for the differences seen between, say, Dr Perkins’ and Dr Gupta’s by [GZW], because a couple of years have passed at a – at what is a critical time of brain development, which in him will go on until at least.”

278. [278]
     As already stated, Dr Till’s view was that if GZW was found unfit for trial, then it should be permanent unfitness.

Consideration

279. [279]
     In relation to this matter, GZW disputes charges 11 and 14.  Therefore, in relation to these charges, I find that there is a substantial dispute about whether he committed these offences. I am satisfied that this dispute does not exist only because of GZW’s mental condition.  Accordingly, I may not make a decision about whether GZW was of unsound mind when the offences were allegedly committed.
280. [280]
     In any event, there is no evidence to support that he was of unsound mind in relation to any of the charges. In relation to the remaining offences subject to this reference, I find GZW was not of unsound mind when these offences were allegedly committed.
281. [281]
     The next issue I must determine is whether GZW is fit for trial. To make such a finding, I must be satisfied on the balance of probabilities that he is fit for trial. Mr Cummings for the Crown frames the issue in this way:

“My submission is, it should – as a matter of fairness, once the issue is raised, it needs to be determined. And, your Honour, I’d also steer against the notice of proof, because that can operate danger – unfairly to a person in [GZW]’s circumstances, rather, it should be – well, it’s an open inquiry and once the issue is raised, that would lead – in my submission, logically, to a circumstance where once it’s issued – once the issue’s raised, unless it can be eliminated, then un – fitness hasn’t been – hasn’t been shown.”

282. [282]
     GZW is a young man and has been subject to cognitive assessments since 2010 which demonstrate a number of developmental disabilities. Dr Zeeman notes the pattern of symptoms and results of current psychometric testing together with his lifespan assessment, mental status examination, clinical history and verified previous psychological assessments appear consistent with the DSM-5 diagnostic criteria for the following:

     1. Unspecified Neurocognitive Disorder (FASD related);
     2. Intellectual Developmental Disorder (moderate – severe); 
     3. Specific Learning Disorder (reading, written expression, arithmetic);
     4. Attention Deficit Hyperactivity Disorder (hyperactive) Severe; and
     5. Complex Childhood Trauma (Post-Traumatic Stress Disorder).
283. [283]
     Whilst Dr Gupta disagreed with Dr Perkins and Dr Zeeman about whether GZW is fit for trial, there is consensus between all of the reporting experts that he does suffer from an intellectual impairment. There has been some reference to GZW’s neurocognitive disorder being as a result of FASD.
284. [284]
     However, as Dr Gupta stated, in relation to the determination of GZW’s fitness for trial, it does not matter whether GZW’s cognitive deficits are as a result of FASD or his alcohol and substance misuse. The undeniable fact is that he suffers from cognitive deficits and has at least a moderate intellectual impairment. The question is how much this impacts on his fitness for trial.
285. [285]
     This matter is very finely balanced. Dr Perkins and Dr Zeeman, psychologists, have performed cognitive assessments upon GZW and both strongly hold the opinion that he is not fit for trial. Dr Gupta, psychiatrist, did not perform any cognitive assessments, but had two interviews with GZW, where he assessed GZW’s performance in each as being fit for trial. Notably, GZW in the second interview, remembered Dr Gupta from the first interview and understood that Dr Gupta had previously assessed him as fit for trial. Importantly, GZW was able to give Dr Gupta an account for most of the offences including ones he disputed, and ones he did not.
286. [286]
     The assisting clinicians’ advice also differed. Dr Till’s advice was that GZW was not fit for trial and Dr Harden’s advice was that he was fit for trial. It is not uncommon that assisting clinicians provide different advice. The mere fact that assisting clinicians take a different view demonstrates the importance of having the court constituted by two assisting clinicians, who highlight different clinical aspects, so that the court can be properly informed. In this case, neither assisting clinician provided strong clinical advice one way or the other; both recognised the complexities and difficulties involved in this case. 
287. [287]
     Even though they have provided different advice, the advice from the assisting clinicians has materially contributed to my decision. The fact that they took a different view, and how they caveated their advice, is a relevant factor.  In my view, their advice, and how they couched it, demonstrates how finely balanced this matter is. 
288. [288]
     In this matter, due to the strong divergence of evidence in all the circumstances, I cannot be satisfied that GZW is fit for trial. In my view, he is unfit for trial.
289. [289]
     I note that GZW can give a version of events and can say what he did, or did not do, in relation to each of the offences. Further, the nature of the offences involves relatively concrete concepts and as Dr Perkins recognises, GZW can form concrete views on clear matters. He has a good episodic memory which Dr Harden highlighted in his advice:

“So there’s a – seems to be a bit of an agreement that his strongest memory is with regard to personally salient events. So that a – episodic memory that has to do with things that happened to him. And he seems to be able to respond to them to some extent, regardless of his overall agree – the agreement that he has an intellectual impairment and that he has a speech and language difficulty which is either commensurate with or worse than his intellectual impairment. I think that the – in these matters, there’s often – and Professor Zeeman – I may think made an excellent point about this – this novel material that’s not relevant to him, has a very low uptake.”

290. [290]
     Further, he is represented by counsel with all the advantages that brings as discussed in R v M. The minimum requirements required for an accused person to be fit to stand trial may not be very difficult to meet. 
291. [291]
     Notwithstanding these matters, and taking into account Dr Gupta’s evidence, I am not satisfied that he is fit for trial, in the face of strong opposing views expressed by Dr Perkins and Dr Zeeman. 
292. [292]
     In my view, this matter goes beyond the circumstances as discussed in Hayles. In that matter, it was held that there is no support to be found in the authorities for the proposition that the minimum requirement of being able to follow the evidence or the course of the proceedings requires that an accused person must have the capacity to store the substantial effect of the evidence in his or her memory and retrieve that memory when required for the purpose of making decisions about his or her defence of the proceedings.
293. [293]
     There are some aspects of Hayles which are applicable to GZW’s circumstances. In this case, GZW has problems with his working memory as highlighted by Dr Perkins and Dr Zeeman.  However, this is not his only deficit. GZW also has difficulty understanding and communicating words.
294. [294]
     I note that Dr Gupta did not conduct his own cognitive screening and instead based his conclusions on a general impression of GZW, and answers about his offending and the court process. Dr Zeeman considered these answers were indicative of his procedural memory, as GZW is rehearsed about these matters because of repeated exposure to information through his legal dealings. Dr Perkins noted GZW’s apparently improved understanding of court processes is only indicative of his familiarity of court processes and narrative memory as distinct from his working memory.
295. [295]
     Dr Gupta raised concerns about the validity of the neurocognitive test results obtained by Dr Perkins and Dr Zeeman on the basis that he may have been still using intoxicating substances at the time of their assessments. However, GZW was in detention at the time of both assessments, so he was unlikely to be under the influence of intoxicating substances.
296. [296]
     In all of the circumstances, I am satisfied of the validity of the neurocognitive testing performed by Dr Perkins and Dr Zeeman. The results of this testing raises real issues about GZW’s fitness for trial.
297. [297]
     The concept of fitness for trial involves considering whether a defendant is fit for trial, and not just fit for a plea of guilty. Fitness for trial involves an assessment of whether GZW has the ability to make a defence or answer the charge. This necessarily involves a consideration about whether a person could give evidence at his or her trial.
298. [298]
     One of the issues raised in this case is if GZW elected to give evidence, his severe deficiencies in working memory and comprehension would impair his ability to withstand cross-examination.
299. [299]
     The Crown submits that accommodations could be provided to GZW, such as repeating information, giving GZW time to absorb it, repeating it back in his own words:  

“…And one of the things that was discussed in accommodating his condition was the prosecution providing the questions of other – for other witnesses in advance. And there’s no reason why that can’t be done for a person to be cross-examined as well, if they elect to give evidence, in the case of [GZW], for example.

So that the circumstances where he would have to be using a working memory in a trial, in my submission, can be removed from the picture entirely. He wouldn’t have to be trying to think on his feet, as it were, whilst he’s bombarded one question after another. And likewise, your Honour, this might be a case where cross-examination –  leading questions under cross-examination isn’t all right. 

And the court can adjust practises to ensure that the questions are not leading.

So all of those things can be scaffolded around [GZW] even if he were to give evidence so that (a) he has time with his legal representatives to go through the questions that might be asked and (b) that the practice – or the conduct of the prosecutor in asking questions fully and fairly accommodates his limitations. So the - - -

…

So the issue becomes, yes, he has got that difficulty. Yes. And I don’t cavil with the idea that he hasn’t got the working memory to simply switch to various pieces of information and bring them to the fore about the offences and answer questions in that way. But the question is deeper than that. And that is whether there can be a – an accommodation of procedure to facilitate. Much the same way as one might when dealing with a child of a very young age. The questions would need to be structured carefully and the questions would need to be fairly, fairly put to keep up with the pace of [GZW].”

300. [300]
     The criminal justice system is flexible enough to be able to accommodate persons, whether they be accused or witnesses, to ensure they can participate in a trial.
301. [301]
     However, being inventive whilst still maintaining the foundation of a criminal trial requires a balancing act.
302. [302]
     In my view, all the accommodations proposed by the Crown would not remedy, or assist, GZW’s deficits to the extent that he would be fit for trial.  
303. [303]
     In relation to GZW being provided written questions in advance of his cross examination, GZW does not have the language capacity or working memory for this to be of great assistance. Dr Zeeman sets out the assessment results of GZW’s language capacity, in her report:

“Language Capacity

• [GZW] was administered a series of language tests to determine his level of word reading, writing and vocabulary knowledge. Language and verbal skills are a fundamental cognitive ability underlying a capacity assessment. Both formal and informal language assessment testing was undertaken.
• On a standardised test of word reading (WRAT5-Word Reading), he performed at the severely impaired level (0.1 percentile). This score was equivalent to school Grade 0 – 1.  
• On a standardized test of spelling (WRAT5 – Spelling), he performed at a similarly severely impaired level (0.1 percentile). Again this score was equivalent to school Grade 0 – 1.
• On a test of vocabulary knowledge administered in a nonverbal format (PPVT5), and without the need for verbal explanation, [GZW] performed at the severely impaired level (2nd percentile) as equivalent to a chronological age of 9 years. This result indicates that even without the need for expressive communication, [GZW] has a severely underdeveloped language store and word knowledge. He would be expected to have significant difficulty understanding and responding to simple language and keeping up with conversation/explanations.”

304. [304]
     I am not satisfied that, providing additional breaks, breaking down the evidence, or pre-recording it, would improve GZW’s performance. Of particular significance, I note Dr Zeeman’s concern, which I found persuasive, about GZW’s difficulty in understanding and communicating words:

“Dr Zeeman, my understanding from your evidence is that compensatory strategies might work to assist him to understand what is being spoken about, if it’s broken down quite substantially to his level, and that his memory might be compensated by the use of recording and then him playing it back, noting what you’ve said about his attention abilities and load there. My question is, even with all of those strategies in place, what do you think his ability would be to interrogate that information that he could consolidate in mind, to then make some sort of decision about and inform his legal counsel?---I would say very limited, if not impossible for him to do that.

And can you just point me in the direction of why?---Because if – if there’s no – how do I – where do I start on this one. Here – if there is no concept of simple word store, then there can’t be ability to go the next step and put all of those words together and to understand what other people are saying. There – there’s just not – it doesn’t work in that way. It’s – it’s like a – a linear process of – of thinking. So you start with the very simple things, which is individual sounds and words and letters. And then – then you go to sentences, very simple sentences, very short sentences. Then you might go to larger – larger statements, multiple statements, multiple sentences. So if you don’t have that ability upfront, of understanding individuals words and understanding how to communicate those words, which is what I tested and which he failed, then how can you possibly make sense of lots of words in lots of different ways by lots of other people?” 

305. [305]
     This, in my view, is a significant deficit in being fit for trial. None of the suggested accommodations would remedy this deficit, in combination with his other deficits, to the extent that GZW would be fit for trial.
306. [306]
     In all of the circumstances, I am not satisfied that GZW is fit for trial, in the face of strong opposing views expressed by Dr Perkins and Dr Zeeman.
307. [307]
     I am not satisfied that GZW meets the Presser criteria; in particular, to be able to follow the course of the proceedings and to make a defence or answer the charge. 
308. [308]
     In my view, GZW is unfit for trial and the unfitness is permanent. There was some suggestion that a finding of temporary unfitness could be made. However, in my view, the difficulties facing GZW are permanent in nature. I have heeded the clinical advice of Dr Till in this respect:

“I’m afraid I’d have to – I would have to disagree to an extent about the likelihood of [GZW] going through more rapid development in the coming years. He has been assessed ever since he was seven years old. And the evidence has been fairly consistent across that time, notwithstanding the non – the assessments where he did not engage.

But across some significant assessments across the different stages in his development, he has been quite impaired. And there’s been no sign that there has been what would amount to a significant and reliable change in his intellectual abilities and his language abilities across that time. So I’m afraid I don’t think that there would be – if he was found unfit or not fit for trial, that a temporary consideration would be in the mix.”

309. [309]
     I find that GZW is permanently unfit for trial. The proceedings against him are discontinued and further proceedings may not be taken against him for the acts or omissions constituting the offences.

Future management

310. [310]
     Having made the finding that GZW is permanently unfit for trial, I need to consider his future management under the Act. 
311. [311]
     Dr Goldfeder has provided two update reports which set out GZW’s current circumstances. The first report is dated 13 May 2024 and the second report is dated 24 May 2024.
312. [312]
     I have taken into account these update reports by Dr Goldfeder which comprehensively set out the various diagnoses GZW has been given and the assessments that have been conducted. 
313. [313]
     GZW has an alcohol and drug use history, and a criminal history which includes offences of violence (where many nolle prosequi have been entered).
314. [314]
     I have taken into account the sheer number of offences that this reference deals with including the seriousness of the offences; some of which can only be characterised as concerning and serious violent offending.
315. [315]
     One victim impact statement from the complainant in charges five and seven was tendered. The events were traumatising to the complainant and it is clear the events had significant consequences for her and her children. Robbery offences are frightening examples of violence in our community. Protection of the community is paramount.
316. [316]
     In terms of available support for GZW, the Office of the Chief Psychiatrist has been in contact with [redacted], Acting Clinical Nurse Coordinator at the [redacted] as well GZW’s current treating psychiatrist, Dr Goldfeder, in relation to GZW’s future management. [Redacted] has provided the following information, in summary:

     1. the Director of Empowering Minds is going through a recruitment process to engage a support coordinator for GZW who can manage complex clients, but in the interim is making arrangements for a two-week short term accommodation placement if he is his released from custody on a forensic order and bail;
     2. supports from iCare Support Services will commence upon release, and would involve the proposed initial respite period of two weeks in which he would be placed in an apartment or unit on a temporary basis with 24/7 supports with iCare facilitating programs throughout the day with him;
     3. while he is at this respite, Supported Independent Living Services (‘SILs’) on a one-on-one basis will be sourced for GZW;
     4. iCare Support Services is a service provider known to GZW, and has worked with him before he went into custody; 
     5. when GZW is released, iCare will support him from custody and/or court to his accommodation, and will support him to go to Centrelink and to attend to banking, clothing, food and other needs of that nature;
     6. Empowering Minds would require at least a week to be fully prepared to provide GZW with appropriate support. He has behaviour support training in his NDIS plan, which is for the support workers to be trained appropriately in management and support strategies and risk to ensure they are prepared to best support and work with him. (If he were to be released earlier than that, there may not be sufficient time to train the support workers.);
     7. the proposed two-week short term accommodation placement is intended to allow iCare support services the time needed to find SILs for GZW on a longer-term basis, where he can be supported holistically in accommodation that suits his particular needs (and not be placed in less suitable accommodation where there is a concern that he will not succeed);
     8. there has previously been an application to QCAT for guardianship that was dismissed, but Empowering Minds are willing to restart that process with a view to having a guardian appointed.
317. [317]
     I have taken into account any opinion, in relation to future management, that has been expressed by expert report writers.
318. [318]
     In his first update report, Dr Goldfeder recommends that GZW be treated in the community, stating:

“In terms of limited community treatment, [GZW] may be better placed in the community. While [GZW] may benefit from structure and routine, an institutional setting is more likely to impede his development than promote it, and amplify the possibility of confrontation that authority brings. He does not seem to have inpatient treatment needs. While his family are not able to provide care, a ‘family like’ setting in the community may allow him to engage in activities where he demonstrated strengths, such as football and art, and enhance relationship building. Due to his volatility, a 2:1 ratio should probably be available, though this would not preclude having co-tenants. Secure Disability Accommodation (SDA) may be considered if available or a robust Supported Independent Living arrangement due to his externalising behaviours and to support staff. His NDIS package would go some way to support this. 

His history of absconding and ‘self-placement’, substance use, and volatility would require careful consideration to contingencies such as in an acute management plan. It would be hoped that the PBSP^[26] would minimise these. His stakeholders would include his NDIS Support Coordinator but as an adult his previous stakeholders would need to be transitioned, new ones identified and mutual support facilitated. This may require mental health services to coordinate eg forensic services and SMHIDS.” (footnote added)

319. [319]
     In his latest report, Dr Goldfeder recommends a forensic order (community) and sets out the following reasons:

3. “A proposed community transition plan is outlined below. This may give [GZW] the best opportunity to avoid further institutionalisation.

3. 1.
   Support Coordination for [GZW]’s complex needs being addressed in his NDIS plan is being managed by the Director of the NGO of Empowering minds, with a specific Support Coordinator still being recruited.

3. 2.
   [GZW] has a [redacted] Transition Coordinator for the first two weeks to facilitate contacts and coordinate services.

3. 3.
   On release, it is planned that [GZW] will have a transitional respite arrangement for two weeks, with 24 hour support. At this time, [GZW] will have support workers from an NGO familiar with [GZW], ICare Support Services. The Acute Management Plan from 2022 would be adapted for their use.

3. 4.
   During this time, his support workers will connect him with Centrelink and meet his personal needs. Arrangements would cater for his day to day needs, but with a view to foster his participation and independence as able. A supported decision making model should be used, before consideration of a substitute decision maker, such as a public guardian. When [GZW] turned 18, his previous guardianship was allowed to lapse as he had not been allowed to demonstrate his lack of a decision making capacity. In view of the complexity of his circumstances, it is likely a low threshold for application to the Queensland Civil and Administrative Tribunal would be made by the mental health team, with assessments that may include his psychologist, OT and Support Coordinator. 

3. 5.
   A psychologist will be contracted by his NDIS support coordinator with a view to revising and implementing his Positive Behaviour Support Plan and consider the use of restrictive practices (such as access to knives). They would be involved in training staff that support [GZW]. Specific and targeted safety plans for high-risk emotions and situations such as absconding can be developed and shared with his support group to ensure others are able to support him with the utilisation of prosocial coping strategies. Due to his expressive and receptive language deficits, [GZW] would not engage well in counselling per se. Soothing and stress management strategies would be developed that may involve sensory modalities from the OT.

3. 6.
   Longer term accommodation (secure disability accommodation or robust supported independent living) will be sourced at this time. It is planned that this will be done with [GZW]’s involvement. [GZW] seemed to function better with a supportive familiar adult, more likely in a ‘family like’ setting rather than institutional care. His carers will assist [GZW] to develop the skills of daily living. A robust supported independent living arrangement, if not secure disability accommodation, with suitably trained, trauma informed and culturally appropriate staff, with 2 staff available (at least one should be male, and high First Nations representation) providing individualised caregiving and a safe environment for [GZW] and staff, is planned. The team would develop and implement processes which prioritise safety, including restricted access to weapons and processes for staff to follow which support [GZW] therapeutically and culturally if escalated or absconding.

3. 7.
   If subject to a Forensic Order, [GZW] would have an appointment arranged with community mental health to screen for comorbidities (such as anxiety and trauma related symptoms) and to assess and manage risk. This would be in consultation with the Specialist Mental Health and Intellectual Disability Service (SMHIDS) and the Community Forensic Outreach Service (CFOS). Risk assessments such as HCR20 (for violence) and ARMIDILO (for sexual offending) could be added to his compendium to refine risk management. He is on no medications, though short term treatments may be considered if warranted for anxiety or sleep disturbances. Appointments would likely involve home or community visits for the majority of interactions. The mental health service would need to consider their role in safety planning, for example if [GZW] becomes dysregulated or uses substances, with the possibility of short term hospital admission.

3. 8.
   It has been noted that in the past [GZW] has functioned best in outdoor activities, such as trips to country with an Aboriginal elder, cultural dance, equine therapy and rugby league. He will be connected to these activities and others, such as a gym, RSPCA, or similar. He is at risk of being influenced by antisocial peers and vulnerable to high risk situations so pro-social environments are important.

3. 9.
   [GZW] is at risk of substance use: motivational interviewing, reinforcement of abstinence (akin to the ‘Community Reinforcement Approach’), and reduction of reliance on maladaptive use of substances to address low frustration tolerance may be best managed with his mental health supports and case management. Random screening may assist, but breaches or lack of cooperation may result in hospitalisation.

3. 10.
   A stakeholder meeting would be convened after a week, and then regularly to improve coordination and implementation of plans. They could support frontline workers and consider or anticipate issues that may arise, such as external relationships, the quality of interactions, or behaviours of concern such as property damage.

3. While this plan could be put into action from a hospital base, it would add in my experience at least two years of further dependency and control, promote the impression and response of mental illness with the risks of reactive aggression in a setting where access to activities are limited.”

320. [320]
     All of the parties agree that a forensic order (disability) is, in terms of section 134 of the Act, necessary, because of GZW’s “mental condition, to protect the safety of the community, including from the risk of serious harm to other persons or property”.
321. [321]
     There was discussion whether the category should be inpatient or community. Section 138(2) of the Act provides:

3. “(2)
   The court may decide the category of the order is community only if the court considers there is not an unacceptable risk to the safety of the community, because of the person’s mental condition, including the risk of serious harm to other persons or property.”

322. [322]
     GZW is presently in custody at [redacted].
323. [323]
     If the category of the forensic order is community, then GZW would remain in prison until a bail application on the outstanding charges can be made, with a view to him being released into the community to supported accommodation under his NDIS plan.
324. [324]
     Section 199 of the Act provides:

3. “199
   Relationship between this Act and custodial status of particular patients

3. (1)
   This section applies to a patient of an authorised mental health service who is subject to any of the following—

3. (a)
   a treatment authority;

3. (b)
   a forensic order;

3. (c)
   a treatment support order.

3. (2)
   A person making a decision about the patient’s treatment in the community must make the decision without regard to whether the patient is in custody under another Act.

3. (3)
   However, a decision made under this Act about the patient’s treatment in the community is subject to any custodial requirement under the other Act.

3. (4)
   Subsection (3) does not apply to a patient who is detained in the authorised mental health service—

3. (a)
   as a classified patient under chapter 3; or

3. (b)
   under an order mentioned in schedule 3, definition judicial order, paragraph (c).”

325. [325]
     In terms of section 138 (2) of the Act, the critical issue is whether a community category order presents an unacceptable risk to the safety of the community.
326. [326]
     Both Dr Harden and Dr Till have raised concerns that GZW would be released from custody without sufficient supports in place. Accordingly, their advice was that the category should be inpatient to allow his transition to the community with appropriate supports in place.
327. [327]
     After the hearing, Dr Till provided the following email:

“#1 The first issue draws on the point made by Dr Harden and referred to by the Mr Cummins (DPP) in his submission, specifically the need for a well-developed plan to be in place for [GZW]’s release. While the plan outlined in Mr Hamlyn-Harris’ (OCP) submission covers off on the not leaving [GZW] to his own devices upon release, it is reliant on Empowering Minds achieving several key necessities while his is on release and in temporary accommodation. These include, recruiting a Support Coordinator who can manage [GZW]’s, services delivered by Supported Independent Living Services staff who [GZW] has probably never met and has no established positive relationship with on which to anchor his compliance when out and about in the community, and an unspecified amount of time to complete an unspecified amount of training for support workers (incidentally with unspecified skills for working with individuals aas complex as [GZW]) who are to work with him.

On this first issue, it is not a case of trying to achieve some lofty ideal prior to release, but rather recognising the need to adopt a very pragmatic approach prior to release. In that regard, I would urge that the required protective structures (case manager, trained and capable support staff, permanent accommodation, PBSP, and a good portion of his structure routine) be established and operational “before” [GZW] is released.

#2 The second issue draws on the reference to Dr Goldfedder’s statement below paragraph 2 in Ms McArthur’s (LAQ) submission. The statement addressed the absence of inpatient treatment needs and recognised the need for mental health services (eg forensic services and SMHIDS) to assist in coordinating the release for [GZW] with is NDIS based supports. This appears reasonable and would likely help with achieving the recommendation I have made above. However, there appears no mention across any of the submissions (OCP, DPP, LAQ) of his outpatient treatment needs, in particular his treatment needs relating to use of drugs and alcohol.

The present proposed Order restricts [GZW] from engaging with alcohol or drugs. Based on his history as presented across the examiners reports and the medical records, it is not likely that [GZW] will adhere to these directions of his own volition. It is highly likely that the support workers will have little to no ability to ensure [GZW] complies with these elements of the Order and they certainly have no effective or authorised powers on which to restrict his behaviours (remain at the living accommodation, not use drugs or alcohol). This essentially leaves them only the option of responding after the fact. It is unclear what, if any, plan is in place for how [GZW]’s support workers/providers will engage him with appropriate treatment services should he use drugs or alcohol. By deduction, this leaves limited options such as do nothing or the reactionary approach of calling an ambulance to take him to a hospital. Given his history, the later may result in the Police attending also, which would raise a high likelihood of [GZW] having a bad reaction to authority and potentially ending up with additional charges. Finally, it is important to understand that the NDIS treatment supports workers would not likely hold the relevant skills, knowledge, and training to provide treatment to [GZW] in relation to his drug and alcohol use, and that even if they did, it would likely be a conflict of interest for them to do so given the purpose of their engagement with him.

How to ensure [GZW] is compliant with the elements of any order made against him is a valid question, particularly given his history of absconding and not engaging with supports. Logically, to be truly preventative, it would be appropriate for [GZW] to be mandated to engage with drug and alcohol treatment through the appropriate mental health service, and for that treatment approach to include therapies adjusted to accommodate his intellectual disability and language problems, and potentially a random monitoring regime to ensure he is not consuming drugs. However, my understanding of the Mental Health Act is fledgling, and I am unsure if the provisions of S. 152(1)(a) would cover the circumstance where the person’s intellectual disability could (not necessarily would, but could) be a significant contributing factor to their alcohol and drug use.   Without some additional direction here, I fear that [GZW] will return to the risk laden life and subsequently the justice system.”

328. [328]
     The court reconvened so Dr Till’s advice could be heard in court.
329. [329]
     Dr Harden’s clear advice was that the category of the forensic order should be inpatient. 

330. [330]
     Both Dr Till and Dr Harden advised that, in the circumstances, the category of the forensic order should be inpatient. As I have already stated their advice has materially contributed to my decision in this matter.
331. [331]
     All of the parties, in the circumstances, ultimately agreed that the category should be inpatient. I agree.

Forensic order

332. [332]
     In my view a forensic order (disability) is necessary because: 

     1. GZW’s unfitness for trial is because of an intellectual disability; and
     2. GZW needs care for his intellectual disability but does not need treatment and care for any mental illness. 
333. [333]
     A forensic order is necessary to protect the safety of the community, including from the risk of serious harm to other persons or property.
334. [334]
     In the circumstances, I agree that the category of the forensic order should be inpatient. However, the authorised doctor can change the category to community once satisfied that supports are in place to ensure that GZW is not an unacceptable risk to the safety of the community. This will allow the treating team the requisite flexibility to be able to safely transition GZW to the community as, and when, appropriate.
335. [335]
     In relation to the conditions of the forensic order, Dr Harden recommends that the conditions contain the full suite of limited community treatment at the discretion of the treating psychiatrist to provide a structured transition to the community. I agree.

Orders

1. In relation to charges 11 and 14, there is a substantial dispute of fact and the court may not make a decision about unsoundness of mind.
2. In relation to charges 1, 3, 4, 5, 6, 7, 8, 9, 10, 12 and 13, GZW was not of unsound mind.
3. GZW is permanently unfit for trial.
4. GZW is subject to a forensic order (disability) – inpatient category.