IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Criminal Division
S CR 2020 0124

THE QUEEN	Crown	
		
v		
		
BREE DELLAMARTA	Accused	

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JUDGE:	Taylor J	
WHERE HELD:	Melbourne	
DATES OF HEARING:	21, 22 and 28 September 2020	
DATE OF JUDGMENT:	13 November 2020	
CASE MAY BE CITED AS:	R v Dellamarta	
MEDIUM NEUTRAL CITATION:	[2020] VSC 745	

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CRIMINAL LAW – Mental impairment – Accused charged with murder – Whether accused unfit to stand trial – Question determined by judge alone – Conflicting evidence of forensic neuropsychologist and clinical psychologist – Question as to minimum content of fitness criteria – Accused fit to be tried – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 6, 7, 91, 92, 93, 94 and 95.

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APPEARANCES:
	Counsel	Solicitors	
For the Crown	Mr D Glynn	Office of Public Prosecutions	
			
For the Accused	Ms J Munster	Victoria Legal Aid	

HER HONOUR:
Background
1	Bree Dellamarta, the accused, is charged with murder.
2	The Crown alleges that on 23 January 2020 she stabbed Mark Ward once to the chest with a large knife in the kitchen of her unit, where she lived alone. The deceased and the accused had been in a relationship for some four years, although did not co-habit. The deceased was staying the night with the accused following a night out with family and friends. The fatal incident occurred following a verbal dispute between them not long before midnight. 
3	The accused telephoned 000 at 12.02 am. Paramedics arrived at about 12.09 am. Mr Ward was pronounced dead at 12.18 am. 
4	A later post mortem examination determined the cause of death to be a single stab wound to the left chest penetrating the heart with a left haemothorax. 
5	The accused was arrested at the scene. She admitted stabbing the deceased, telling police at the scene that both she and the deceased had been drinking and she did not know if he was going to hit her. The accused later participated in a formal police record of interview, in the presence of an independent third person, where she again admitted stabbing the deceased.
Question of Fitness
6	The accused has a mild intellectual disability. There is a ‘real and substantial question’ of her fitness to stand trial. That question was raised in a neuropsychological report authored by Martin Jackson on behalf of the accused in which he expressed the opinion that the accused:
is not fit to stand trial on the basis that she does not understand and would not be able to exercise her right to challenge jurors, she would be unable to follow the course of the trial, she would be unable to understand the substantial effect of any evidence that may be given in support of the prosecution and she would be unable to give instructions to her legal practitioner. The use of compensatory strategies will not assist her to the point where she would be fit.
7	Christopher Drake authored a psychological report on behalf of the Crown in which he stated that:
Although [the accused] has an intellectual disability at the mild level, with particular limitations in her processing speed, attention and memory, these deficits do not appear to rise to a level to render her unfit to stand trial on any of the criteria.
8	The question of the accused’s fitness to stand trial was heard before me without a jury on 21, 22 and 28 September 2020. Each psychologist gave evidence in accordance with his report and was cross-examined. 
Answer
9	I find the accused is fit to stand trial.
10	My reasons for this finding are set out as follows:
i.	Legal Principles – an overview and re-statement of the applicable and guiding principles to be applied in a fitness inquiry;
ii.	The Experts – a summary of the two expert opinions, including an analysis of their respective approaches to the question of fitness; and
iii.	The Criteria: Evidence, Submissions, Analysis – addressing each of the relevant s 6(1) criteria having regard to the evidence given by both experts, and submissions made by both parties, followed by my analysis and findings. 
Legal Principles
11	A person is presumed to be fit to stand trial. That presumption may be rebutted.  The question of a person’s fitness to stand trial is a question of fact to be determined on the balance of probabilities. The party raising the question bears the onus of proof.
12	A person is unfit to stand trial if, because the person’s mental processes are disordered or impaired, the person is, or at some time during the trial will be unable to meet one or more of the criteria in s 6(1) of the Act. 
13	Thus the question of the accused’s fitness involves a two-step enquiry. First, does the accused currently suffer from at least one of the delineated incapacities in s 6(1) of the Act, or will do at some time during the trial. Second, is that incapacity or those incapacities caused by the accused’s disordered or impaired mental processes.  
14	Before considering the specific criteria relevant to this matter, it is worth recalling matters of principle with respect to the issue of fitness. These principles are uncontroversial.
15	A person cannot be tried for a criminal offence unless he or she is fit to stand trial. The mere existence of a mental disorder does not render an accused unfit.
16	At common law, fitness required that an accused could understand the nature of the charge; enter a plea to it; exercise the right of challenge; understand the nature of the proceedings as an inquiry into whether the accused committed the offence charged; follow their course; understand the substantial effect of any evidence that may be given in support of the prosecution; and make his or her version of the facts known. In the now oft-cited statement, Dixon J (as he was then) in Sinclair v The King said that ‘[i]t does not seem to have been noticed by the text writers how high a degree of intelligence this test might demand if it were literally applied.’ 
17	It follows that the test, whether at common law or under the Act, must be applied in a ‘reasonable and common sense fashion’.  And, as expressed by Hayne J in Eastman, the result is that ‘[p]roperly understood, these tests may not be very difficult to meet.’ 
18	The minimum standards of the common law test are now largely reproduced in s 6(1) of the Act. Consequently the common law authorities remain relevant to the interpretation of the statutory test. 
19	The focus of a fitness inquiry is on the ability of an accused to meet the minimum threshold of the criteria. This was highlighted in R v Rivkin, where post-conviction evidence established that during the trial the accused had an undiagnosed frontal lobe tumour which caused a frontal lobe dysfunction. As a result, the accused suffered poor judgment and irrationality as well as inappropriate and disinhibited behaviour. It also caused significant reduction in the accused’s short-term memory and capacity for new learning. The court held that a reduction in an accused’s ability to meet the Presser requirements did not render that accused unfit so long as the minimum requirements were met. In particular, that an accused may have met those requirements in a better way was held to be irrelevant:
Any other approach might invite invidious comparisons between accused of different intellectual backgrounds or personalities. It could also invite a fruitless search for a hypothetical accused with the capacity, intellectual or otherwise, which might equip him or her with the ability to conduct a defence at a predetermined level of skill. 
That is not the concern to which the Presser test is addressed. Inevitably there will be accused who could have done better in a trial, had they possessed a more attractive personality, greater intelligence or education, improved communication skills, a deeper appreciation of the factual and legal issues, or even a better appreciation of the trial process, than those possessed or displayed at trial. It does not necessarily follow that they were unfit to be tried.
20	The particular trial facing the accused is also relevant. The court must consider the complexity of the charge and whether the accused is represented by counsel.  In R v Hayles, the accused was charged with attempted murder. The only issue at trial was whether the killing was accompanied by murderous intent. That was not an issue of great complexity and the accused was represented by counsel. As the evidence supported a conclusion that he would be able to give instructions to counsel on matters relevant to that issue, the accused was fit. 
21	The assistance of counsel is also relevant to the assessment of whether an accused will be able to understand and follow the processes of the trial. That criterion does not extend to a requirement that an accused can understand the law under which he or she is tried or have the capacity to make an able defence.
22	In Presser, Smith J observed:
Where he [or she] has counsel he [or she] needs to be able to do this through his [or her] counsel by letting his [or her] counsel know what his [or her] version of the facts is and, if necessary, telling the court what it is. He [or she] need not, of course, be conversant with court procedure and he [or she] need not have the mental capacity to make an able defence; but he [or she] must, I think, have sufficient capacity to be able to decide what defence he [or she] will rely upon and to make his [or her] defence and his [or her] version of the facts know to the court and to his [or her] counsel, if any. 
23	The High Court in The Queen v Ngatayi approved the Presser formulation. The majority referred to the cautionary observation of Dixon J as to literal application of the test in Sinclair and held that Smith J in Presser was correct in finding that an accused need not have the capacity to make an able defence. 
If the accused is able to understand the evidence, and to instruct his [or her] 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 [or she] will usually be able to make a proper defence.
24	In that case the accused admitted killing the deceased. In issue was whether his state of intoxication was such that he was incapable of forming murderous intent. His counsel argued that he was incapable of understanding the distinction between an act of killing accompanied by such intent and one where no such intent had been formed. The majority stated:
In the present case there is no reason to doubt that the applicant understood the nature of the proceedings and the nature of the evidence. He was capable of giving evidence as to the circumstances out of which the charge arose, including evidence that he was drunk when he stabbed White. … The fact that the applicant could not understand the law under which he was tried did not mean that he was not able to make a proper defence with the assistance of counsel. 
25	Similarly, in Hayles the court held that the minimum requirements that an accused must be able to follow the evidence and respond rationally to the charge does not require that an accused must be able to understand how his or her intention may be inferred from the evidence. Nor does the test require an accused to be able to participate in forensic or tactical decision making.
26	In R v Dunne, it was held that an accused need not have a complete understanding of the evidence but rather the capacity to instruct his or her counsel as to the facts of the case.
The Experts
Mr Jackson
27	Before considering the evidence given by each expert, it is important to note the fundamentally different approach taken Mr Jackson and Mr Drake in their evaluation of the accused’s fitness. Unsurprisingly, it arises from their different specialties; Mr Jackson is a forensic neuropsychologist, while Mr Drake is a clinical psychologist. 
28	Mr Jackson administered neuropsychological tests to the accused and used these, in part, to inform his opinion as to the s 6(1) criteria. Mr Drake accepted the results of those tests but doubted the relevance and usefulness of them to the real-world functioning of the accused and gave them little weight in his opinion as to the s 6(1) criteria. Both agree that a mild intellectual disability is not, on its own, sufficient to render a person unfit to stand trial. 
29	It is not the function of this decision to adjudicate the abstract strengths and weaknesses of neuropsychology as against clinical psychology. However it is necessary for me, in the face of diametrically opposing expert opinions, to undertake an analysis of the approach and methodology of each expert as I draw upon their respective expertise to inform my decision as to the accused’s fitness.
30	Mr Jackson assessed the accused on 6 May 2020 over a two and a half hour period at the Dame Phyllis Frost Centre. She was cooperative and maintained attention throughout. His report is dated 18 May 2020. It lists the information he had available to him.
31	Mr Jackson used a standard and formal neuropsychological approach in his assessment of the accused. The standard assessment consists of an interview, cognitive testing, questionnaires to evaluate psychological functioning and personality, and a review of all available ancillary materials about the person. Formal questionnaires were not given due to the accused’s poor literacy skills. The assessment of her psychological function was made on the clinical basis of her presentation.
32	Mr Jackson’s opinions and conclusions are based on a combination of four sources of information, namely: neuropsychological test results; information contained in previous neuropsychological, educational or other reports; corroborative information or history from third parties; and the interview and his own behavioural observations.
33	The results of the cognitive tests he administered to the accused are consistent with those from similar testing conducted in 2003. He said cognitive testing is the gold standard of measuring a person’s cognition. The cognitive profile he obtained is valid and indicates significant impairments against all domains of cognitive functioning. The accused’s full-scale IQ is 61. This is at the low end of the mild intellectual disability range, placing her within the lowest 0.5% of the population. Both her verbal and perceptual intellectual abilities are in the extremely low range. She achieved her best results in general knowledge and attention to detail, both of which were borderline. Her basic processing speed was in the extremely low range. Multiple task processing was severely impaired. The accused’s immediate working memory span was in the borderline range. Her sequencing and working memory span were in the low average range. The majority of her language skills were in the extremely low range and mostly the equivalent of a grade 3 primary school student. All of the accused’s executive skills were in the extremely low range. 
34	Mr Jackson gave extensive and detailed evidence as to the precise nature of the tests administered to achieve these results. In his opinion, these results indicate that the accused experiences a number of problems arising from her cognitive impairments. 
35	She has a very basic understanding of language. She is extremely slow at processing information, taking twice as long as average on basic tasks and up to five times as long on more complex tasks. Even at that speed the tasks are not completed without error. She is overwhelmed by new information and can only ever comprehend a maximum of three pieces of information. She is basically illiterate. Her executive skills are extremely poor. She has limited ability to plan, organise, think abstractly or problem solve. She has no capacity to think of alternative solutions to a problem. 
36	In Mr Jackson’s opinion, while there are some limitations to neuropsychological testing there is ‘good evidence’ to indicate that ‘certain aspects’ of cognition are ‘highly correlated’ with the actions of a person in their daily life. This is especially so with their working memory and executive skills. Further, Mr Jackson stated that such test results are best at predicting how a person will deal with an unknown or unusual situation. They would not, for example, be of great assistance in assessing a person’s ability to operate a washing machine, or another learned skill that is part of everyday life. 
37	As noted in paragraph 2, at the time of incident the accused was living independently in her own unit. Mr Jackson gave evidence that the accused is independent in her personal care, and in her domestic activities. He identified no issues in her ability function around the house, or in engaging with community activities. Mr Jackson gave evidence that the accused had never managed her money, and that her finances were managed by her parents when she lived with them and subsequently by her sister. The accused told Mr Jackson that her sister gave her $500 a fortnight to spend on discretionary items, such as groceries.
38	Mr Jackson gave evidence that difficulties with decision making, planning, handling money and time management were ‘clearly relevant’ to the fitness criteria informing his decision as to whether the accused was fit to stand trial. Mr Jackson highlighted a link between those difficulties and the ability to weigh up information, make decisions about that information and then provide instructions to a solicitor. He is also referred to the accused’s difficulty with the concept of time, given the elongated process from the time of the incident, presence of police at the scene, to being interviewed. Mr Jackson said that her inability to identify exact timeframes was relevant to the question of fitness. 
39	In cross-examination, the Crown suggested that there was some level of financial management undertaken by the accused, and that Mr Jackson has misapprehended the level of involvement of the accused’s sister in this aspect of her daily functioning. The Crown clarified the evidence of the accused’s sister, namely that the accused gave her $400 per fortnight to be kept aside to pay bills. Mr Jackson gave evidence that it was difficult to know if this kind of budgeting (ie, giving $400 to her sister and spending $500 on groceries and other necessities each fortnight) was a learned skill or demonstrative of some level of functioning, but conceded that he had not specifically asked her about these buying routines.
Mr Drake
40	Mr Drake assessed the accused on 28 August 2020 over a period of about one hour and 40 minutes via video link at the Dame Phyllis Frost Centre. She was cooperative and maintained attention throughout. His report is dated 11 September 2020. It lists the ancillary information he had available to him. Mr Drake had read Mr Jackson’s report at the time of his assessment, however did not read the remainder of the prosecution documents until after conducting his assessment of the accused.
41	Mr Drake gave evidence that he was surprised at how well the accused performed during the interview. She gave appropriate responses to his questions and a consistent account of her personal circumstances and the circumstances of the offending alleged. Mr Drake placed particular emphasis on the accused’s understanding of his role, the purpose of the assessment and the court’s eventual receipt of the report in evidence. Mr Drake noted that the accused’s apparent understanding was “quite unusual”, especially as compared to other accused persons that he has assessed for fitness. While Mr Drake said in cross-examination that he was unfamiliar with the term ‘gratuitous concurrence’, he was familiar with the notion that a person with an intellectual disability may pretend to know what is going on when they actually do not.
42	Mr Drake did not administer tests of cognitive functioning. Mr Drake cautioned against the drawing of conclusions between neuropsychological test scores and an understanding of what that person “can actually do in real life.” Mr Drake placed more emphasis on what has been reported by others, his own observations and what was reported to him by the accused. While he accepts the results of the tests administered by Mr Jackson, he places very little weight on them in his assessment of the accused’s real world functioning or her fitness to stand trial. 
43	Mr Drake agreed that the accused had some executive functioning impairments, but identified behaviour such as cooking, buying food, cleaning her unit, looking after her dogs and budgeting, as evidence of some level of execution functioning. He did not agree that these were entirely learned behaviours.  
Submissions
44	The accused submits that where, on a specific issue, the opinions of Mr Jackson and Mr Drake conflict, the Court should prefer the evidence of Mr Jackson. That submission is based on the following reasons. 
45	First, although Mr Drake’s assessment of the accused is more recent than Mr Jackson’s, the intellectual disability of the accused is long standing and unlikely to change, certainly over the three months between the two assessments. Second, Mr Jackson had available to him a greater amount of information than Mr Drake. This was information gained from the process of administering the neuropsychological tests as well as information obtained from viewing the audio-visual recording of the record of interview and the body worn camera footage of the first responders at the scene of the fatal incident. Third, the standard neuropsychological assessment using four sources of information was superior to Mr Drake’ acceptance, without challenge, of the accused’s understanding and answers during the interview. Fourth, Mr Jackson undertook a careful and considered assessment whereas Mr Drake formed a hasty conclusion during the interview itself. Fifth, the accused submits that Mr Drake overstated his opinions.
46	As noted above, it is not my function to prefer either neuropsychology over clinical psychology or vice versa. I do not accept that the evidence of one expert is always to be preferred to the other on the basis of the submissions summarised immediately above. Such global submissions are unhelpful. In particular, I do not accept the general submission that Mr Drake overstated his opinions. The ‘conclusion’ he formed as to the fitness of the accused during the interview was expressly stated to be tentative and to be later confirmed, or not, by his review of the ancillary material. 
47	Rather, my determination of the question of the accused’s fitness is based upon careful consideration of all available evidence before me. I place appropriate weight upon certain aspects of the experts’ findings in relation to each of the relevant criteria in the process of synthesising my ultimate decision. I do not reject in totality either of their opinions, notwithstanding their opposing conclusions.
The Criteria: Evidence, Submissions, Analysis
48	In this case, while the parties agree with the general principles as to fitness summarised above, there is some disagreement as to the minimum content of each of the four s 6(1) criteria in issue in this case. Those criteria are:
1.	The ability to exercise the right to challenge jurors or the jury; 
2.	The ability to follow the course of the trial; 
3.	The ability to understand the substantial effect of any evidence that may be given in support of the prosecution; and 
4.	The ability to give instructions to legal practitioners.
49	These incapacities are said to arise from the accused’s impaired mental processes consequent upon her mild intellectual disability. If the incapacities are established by the accused, the Crown does not join issue in this regard. 
50	Generally, the accused notes the limited consideration of the minimum content of the statutory criteria in Victoria and submits that authorities from other Australian jurisdictions must be treated with caution. The accused submits that the minimum content of the criteria does not include consideration of the extent to which modifications of the trial process, such as the use of a support person, could assist the accused to become fit to stand trial. The accused further submits that there is no Victorian authority establishing the assistance of counsel to an accused to be a relevant consideration in determining whether the minimum threshold for fitness criteria has been met. Conversely, the Crown submits that the assistance of counsel is a relevant factor in determining whether the minimum threshold of fitness is met.
51	I do not accept the general submission of the accused that the absence of Victorian authority establishing the assistance of counsel to an accused to be a relevant consideration in determining the content of the statutory fitness criteria to be sufficient reason to disregard it. Notwithstanding differences between the statutory tests of fitness of the Australian jurisdictions and the earlier consideration of the relevant issues of the common law test, for the reasons identified in the authority summarised above, the representation by counsel is logically relevant to the ability of an accused to meet any of the fitness criteria. 
52	Both parties submit that the issue should be resolved in the Presser ‘reasonable and common-sense fashion’. Both submit that the circumstances and complexity of the anticipated trial, as opposed to a hypothetical trial, should be considered.
Ability to challenge jurors
Evidence
53	Mr Jackson stated that the accused did not know about her right to challenge jurors. He asked if there was a juror who she might not want on the jury. She replied ‘I might not feel confident with them, their personality’. He stated that the accused was not able to expand upon that answer and was not able to spontaneously state that the issue concerned perceived unfairness. Mr Jackson then ‘educated’ the accused that she could challenge jurors if she had a concern that they might not give her a fair go and find her guilty no matter what. He then asked her to repeat the idea in her own words. The accused said that she might not want a juror if ‘you know them or your background’. He concluded that she did not really give the impression that she understood the concept of bias or fairness. 
54	Mr Drake stated that although he did not ask the accused directly about the process of jury challenges, he did ask how she would respond if she saw a friend of the deceased on the jury. The accused said that she would not want him because he ‘would go on [the deceased’s] side’. He asked if that person would be more likely to argue for her to be found guilty or not guilty. She said that they would probably ‘push for guilty’. Mr Drake asked what she would do in those circumstances. The accused said that she would burst out crying. He then asked if it would be a good idea to tell her lawyer that she recognised that person. The accused responded affirmatively.
55	In oral evidence Mr Jackson said that the answers the accused gave to Mr Drake indicated that she did not appear to understand the right of challenge or have the capacity to exercise it. His view was that those answers did nothing more than show that the accused would do exactly what her solicitor told her to do. He said that the accused could not ‘self-initiate’ the right. While she could be trained to learn the reasons why it may be prudent to challenge a certain class of person, she could not be trained to identify a person who potentially fell within that class.
56	In cross-examination Mr Jackson accepted a number of propositions put to him. The accused is capable of uttering a challenge and knows the effect of doing so. She knows that a juror who is connected to one of the parties to the case should not be on the jury because they might be biased. She knows that she can challenge a juror based on a feeling she gets. She knows that she can act on her lawyers advice. He also accepted that the accused is not required to exercise the right to challenge a juror for an objectively good reason. 
Submissions
57	The accused submits that this criterion is focussed on the ability to exercise the right to challenge. That requires more than the mere capacity to utter the word ‘challenge’, otherwise anyone with the capacity for speech would automatically satisfy this test. Rather, the criterion requires the accused to have both knowledge of the right to challenge jurors and the decision-making ability to exercise that right. To have the relevant knowledge, the accused must understand the reason behind the right, namely that it is based on fairness and prejudice. 
58	The accused further points to the fact that the right to challenge jurors belongs to the accused and not counsel. Challenges must be voiced by the accused unless there is a good reason not to. The accused argues that the assertion of a ‘usual practice’ whereby challenges are exercised on the advice of counsel is irrelevant to the minimum content of the criteria. 
59	The Crown argues that the accused needs to be able to understand that she has the right, she can exercise it by saying the word ‘challenge’ and the effect of the challenge. She must understand that the purpose is to remove a juror who might be thought to be unfavourable to her. In that decision and process, she will be assisted by her solicitor. 
60	The Crown submits that it is unnecessary for the accused to have the ability to conduct an intelligent analysis of the pros and cons of any particular juror. That would not only exceed the legislative requirement, but would suggest that an intelligent analysis of prospective jurors is what in fact generally takes place. In reality, jury challenges are generally informed by arbitrary judgments and gross generalisations based on very little information and no reliable body of knowledge. The Crown further submitted that accused persons almost always rely completely on their solicitor for advice.
61	It is to be noted that neither party sought to draw a distinction between peremptory challenges and challenges for cause. The submissions were directed towards the former.
Analysis
62	In my view the minimum content of this criteria requires the accused to understand that she can, by uttering the word challenge, prevent a person from sitting on her jury. She must understand that she can do so for any reason. That is the nature of a peremptory challenge. It might be because that person may be unfavourable to her, but it need not be. Her decision can be based on a feeling, the way someone looks or the advice of her lawyers given prior to the empanelment process and/or during it. She is given the statutory right to observe the face of a potential juror. The only relevant consideration is that the accused does not want to be tried by that potential juror. 
63	The minimum threshold for this criteria does not require an accused to be able to articulate and grapple with concepts of bias and fairness in abstract terms. The evidence establishes that the accused understands that a person with a personal connection to the case should not sit on the jury, whatever words are used by her to convey and describe that understanding. The evidence also establishes that the accused is capable of understanding advice from her lawyers as to the type or class of person who might be best to be challenged. 
64	That, during the empanelment process, the accused would be assisted to identify potential jurors who fall within that class and may well rely heavily or exclusively upon the advice of her lawyers does not render the accused incapable of meeting the minimum threshold herself. As noted above, I consider the assistance of counsel (or solicitors) to be relevant to the assessment of  the fitness criterial.  
65	Further, as submitted by the Crown, s 6(1)(b) of the Act does not require the accused to be able to exercise the right to challenge jurors well. That the assistance of a solicitor during the empanelment process might enable her to exercise the right better than might otherwise be the case is irrelevant to her capacity to do so alone. 
66	In my view, the evidence demonstrates that the accused is able to exercise the right to challenge potential jurors or the jury, be it peremptorily or for cause. 
Follow the course of the trial
Evidence
67	Mr Jackson expressed ‘serious concerns’ about the ability of the accused to follow the course of the trial. One basis for this was her language skills being at the level of a Grade 3 or 4 primary school child. As it is impossible for a court hearing to be conducting using language of this level, the accused would need some compensatory strategies to assist her. Those strategies could not include anything in writing given her minimal literacy. Nor could they include an aide sitting next to her, as oral assistance would only be effective if things were repeated two to three times. A second basis was because she has ‘concrete and inflexible thinking’. This means her capacity to plan, organise or problem-solve was limited. She will get information mixed up. Mr Jackson referred to several of the accused’s answers in the record of interview where she gave consistent answers when asked for estimates of distance and time. 
68	Mr Drake stated the accused’s ‘real-world capacity may be greater than expected’. He gave several examples of the capacities to understand and follow the process of his assessment of her, including in current affairs and sport. He stated that her interactions with both emergency workers and police showed an awareness of events and appropriate responses to conversation. Mr Drake also said that the relative simplicity and consistency of the evidence together with the simplicity of the events constituting the alleged offence ‘arguably reduces the cognitive load’. 
69	In oral evidence Mr Jackson said that the capacity of the accused to understand the assessment process and to follow topics such as current affairs in sport as noted by Mr Drake, is not comparable or demonstrative of an ability to follow the course of the trial. He also said that the issue concerned not just being interested in the information or having the ability to take it in, but about how the accused processes that information. She has an issue with her executive functioning and cannot utilise and work with the information.
Submissions
70	The accused submits that this criterion requires the accused to be able to follow the course of the proceedings so as to understand, in a general sense, what is going on in court. It does not require the accused to understand the purpose of all court formalities.
71	The test is whether the accused has a sufficient mental state and intellect to comprehend the course of the proceedings involved in the trial so as to follow them and make a proper defence.
72	It is submitted that the word ‘follow’ means to be engaged in or be concerned with, or to keep up with and understand. This connotes an ability to take in and retain new information. The complexity of the anticipated trial is therefore relevant. 
73	The accused further submits that this criterion requires more than passive observation or concentration. While the evidence establishes her good concentration during both psychological assessments, there is no evidence before the court that she can sustain concentration during the days of a trial. 
74	The Crown submits that the accused need only to be able to understand the evidence given in her actual trial in general terms.
Analysis
75	The trial of the accused will, in my view, be relatively straight forward and confined. There is no dispute that she caused the death of the deceased. There is no dispute that the act causing death was done consciously, voluntarily and deliberately. It appears there are two issues in the trial: (i) whether the accused had murderous intent and (ii) whether her actions were done in self-defence. The Crown evidence is largely comprised of what the accused said both at the scene and in her record of interview, the physical crime scene, autopsy report and background circumstances. The fact that the statements made by the accused were recorded means the evidence is almost entirely known in advance. The amount of new information that the accused will need to take in is limited. This will not be a trial in which there is any unduly complex scientific or financial evidence, or competing versions of an event observed by multiple witnesses. 
76	Section 6(1)(d) of the Act requires an accused to follow the course of the trial. There is nothing in the evidence which suggests that the accused does not understand that the Crown will lead evidence against her and a jury will return a verdict. Both experts have found that the accused understands the nature of the trial. She also understands that she has killed the deceased. She gave accounts of her actions to police. In the context of this trial, the need for the accused to absorb and analyse new information is very limited. It is not to be expected that she will need to give instructions as to previously unheard evidence or changed evidence in real time.
77	In my view, the evidence of both Mr Jackson and Mr Drake demonstrates that the accused has sufficient capacity to follow the course of her trial.
Substantial effect of the evidence
Evidence
78	With respect to this criterion Mr Jackson again emphasised the poor executive and problem solving skills of the accused. He stated that although she is able to identify some of the evidence to be led against her ‘she has no understanding of how this in particular could be used in terms of its substantial effect’. 
79	In oral evidence he accepted that the accused would be able to understand certain pieces of evidence such as the knife, photographs and a neighbour hearing loud voices. He also stated that her memory of certain facts did equate with the accused having the problem solving or decision making skills to be able to weigh up competing inferences.
80	Mr Drake said that the accused demonstrated an appreciation that a jury hearing incriminating evidence may be more likely to reach a guilty verdict. She also demonstrated that she understood that if something was said that was not true or with which she disagreed, she would tell her lawyer.
Submissions
81	The accused submits this criterion requires her to understand the main elements of the evidence led against her and to understand the substantial effect of such evidence.
82	The accused argues that the words ‘substantial effect’ elevates the requirement beyond superficial awareness of different types of evidence and requires an ability to understand the implication of the evidence to her defence. Again it is submitted that the complexity and length of the trial is relevant. 
83	The Crown submits that the criterion requires the accused to understand the main facts that the evidence might establish. It does not require her to understand all of the implications that might flow from the evidence. To illustrate, in this case it does not require her to understand how differential inferences might be drawn from the evidence that may relate to the distinction between murder and manslaughter or to the question of self-defence. Nor does it require her to understand how arguments as to those issues by either the prosecutor or her counsel might be framed.
Analysis
84	My understanding of Mr Jackson’s evidence as detailed at paragraph 78 is that the accused would understand that evidence is being given in court about her conduct, but that she may not appreciate the significance of how that evidence might be used by the jury to make certain inferences before arriving at their decision. Section 6(1)(e) does not require an accused to be able to undertake a detailed and intelligent analysis of the prosecution case. She need not have a complete or intimate understanding of the evidence. She is also not required to understand how certain inferences may be drawn from the evidence by the jury, nor participate in forensic or tactical decision making either pre-trial or as the evidence falls. 
85	I reiterate my view that the trial of the accused will be relatively straightforward, and that the facts of the prosecution case are known in advance. In particular, her answers to police and emergency workers are recorded, enabling the accused to review the material in advance of the trial with the assistance of her lawyers’ guidance and advice. The evidence demonstrates that the accused understands that there will be physical exhibits as well as witnesses. The criterion does not require her to understand the details of every piece of evidence, only the substantial effect of that evidence.
86	In my opinion, the accused will be able to understand the substantial effect of any evidence that may be given in support of the prosecution.
Ability to instruct counsel
Evidence
87	Mr Jackson stated that the accused’s cognitive limitations meant that she was not able to weigh up options and therefore could not give her solicitor informed instructions. Rather, she would simply rely upon her solicitor to tell her what to do and then do it.
88	In cross examination, Mr Jackson accepted that the accused has a good memory of the events and is capable of giving her version of events to her lawyers.
89	Mr Drake said the accused has provided clear and consistent descriptions of the events leading to the death of the deceased and also of her mental state at the time. He said that during his assessment of her, the accused communicated clearly with him. It followed that she could communicate clearly with and give instructions to her lawyer. 
Submissions
90	The accused submits that decision-making capacity is the lynch-pin of this criterion. This is because the issue of fitness focusses on fairness and is concerned with ensuring that a person is able to be accountable for their actions.
91	The accused argues that the criterion requires the accused to be able to give any necessary instructions to her lawyers, let her lawyers know what her version of the facts is and, if necessary, tell the court what that version is.
92	While the accused accepts that forensic decisions are properly to be made by counsel, it is submitted that those decisions should be informed by the competent, factual instructions of the accused. And further, that some fundamental decisions, including whether to give evidence or not, are the province of the accused and not counsel. 
93	The accused also accepts that the criterion does not require the accused to make an able defence, but argues that it must require her to make forensic choices and instruct counsel on the nature of her defence. That is, she must have sufficient capacity to decide upon what defence she will rely and to make it and her version of the facts known to both her counsel and the court. The accused submits that she is unable to make a defence because she has given differing accounts of the incident itself and cannot now recall it at all.
94	The Crown submits that the criterion requires the accused only to be able to instruct her lawyers as to the facts. The essence of the requirement is the ability to respond to the accusation by putting forward her version of events. Once that has been done, it is then a matter for her counsel to develop a strategy and argue the case. The Crown submits that this is what happens in almost every criminal trial regardless of the level of ability of the accused.
Analysis
95	Section 6(1)(a) does not require the accused to provide her lawyers with an analysis of the evidence. What is required is the capacity to instruct her counsel as to her version of the facts of the case. That she may have given inconsistent accounts to police (if that is in fact the case) does not mean that she cannot tell her lawyers her version of events. Indeed her capacity to participate in the record of interview demonstrates the opposite. Those answers are now a large part of the prosecution case.  Again it is to be recalled that the issues in dispute are confined. The trial is likely to focus on argument made by both counsel as to whether the totality of the evidence demonstrates murderous intent or the requisite elements of self-defence. It will not be a trial in which, for example, the accused must give detailed instructions about conversations in which an agreement was reached or the circumstances in which a document came into existence.
96	In my view the evidence demonstrates that the accused is able to give instructions to her legal practitioner. 
Conclusion
97	For the foregoing reasons the accused has not rebutted the presumption that she is fit to stand trial with respect to any of the four s 6(1) criteria in issue.
98	It follows that the accused is fit to stand trial. 
99	The trial is to be commenced in accordance with the usual criminal procedures.