Supreme Court New South Wales Medium Neutral Citation: R v Maxwell [2023] NSWSC 1189 Hearing dates: 3 July 2023; 4 July 2023 Date of orders: 12 September 2023 Decision date: 12 September 2023 Jurisdiction: Common Law Before: Yehia J Decision: The Court finds that: (1) In accordance with the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the accused, James Maxwell, is unfit to be tried on the offence the subject of the indictment filed against him in this Court. (2) Pursuant to s 47(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), on the balance of probabilities, the accused will not become fit to be tried for the offence during the period of 12 months after this finding of unfitness. The Court orders that: (1) The accused be remanded in custody; and (2) Pursuant to s 53(2) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the proceedings are listed for mention on 20 October 2023, so that the Court obtains advice from the Director of Public Prosecutions as to whether or not further proceedings will be taken by the Director in respect of the offence. Catchwords: CRIMINAL LAW — Fitness to be tried — Accused charged with murder — Where the accused is mentally and cognitively impaired — Whether the accused's impairment can be ameliorated by the Court modifying the process and sitting hours — Accused unfit to be tried — Whether the accused "will not become fit" within 12 months Legislation Cited: Crimes Act 1900 (NSW), s 18(1)(a) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss, 4, 4(1), 5, 5(1), 35, 36, 37, 38, 39, 44(3), 44(4), 44(5), 47, 47(1)(b), 48, 49, 50, 51, 52, 53, 53(2), Pt 4, Div 1 Cases Cited: Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41 R v Presser [1958] VR 45 R v Risi [2021] NSWSC 769 Category: Principal judgment Parties: James Maxwell (Applicant) Rex (Respondent) Representation: Counsel: T Evers (Applicant) D Scully SC (Respondent) Solicitors: Takchi & Associates Solicitors & Notaries (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2020/00278213 Publication restriction: Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), there is to be no publication of any matter which is likely to lead to the identification of NH JUDGMENT Introduction 1. The accused, James Maxwell, has been committed to stand trial in this Court on an indictment alleging that he murdered Shane "Wock" De Britt (the deceased), as a participant in a joint criminal enterprise. There is a question as to Mr Maxwell's fitness to be tried. That is an issue which is to be determined on the balance of probabilities by the application of the relevant provisions of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the "Act"). 2. For the purposes of this judgment, Mr Maxwell will be referred to either by his name or as "the accused". Summary of the Crown Case 1. The Crown alleges that sometime between 12:35am and 4:04am on Tuesday 14 January 2020, the deceased was shot and killed at his home in Eurimbla, New South Wales, by a single shot from a shotgun to the head as he lay in his bed. It is the Crown case that this was a planned and premeditated murder organised by Brenton Hayes and Phillip Woods and carried out by members and associates of the Grudge Bringers Social Club. 2. The deceased was the President of the Bandidos Central West Chapter and Mr Woods was the President of the Grudge Bringers Social Club. At the time of his death, the deceased and the Bandidos were involved in an escalating conflict with Mr Hayes and Mr Woods, and members and associates of the Grudge Bringers. The Crown alleges that the conflict led to the formation of an agreement and plan by Mr Hayes, Mr Woods, NH, and other members of the Grudge Bringers to kill the deceased. 3. It is the Crown case that Brenton Hayes, Phillip Woods, James Maxwell, Brian Farnsworth, NH, Jace Harding, and Brendan McLachlan were participants in a joint criminal enterprise with each other to kill the deceased. The liability of the accused for murder allegedly arises as follows: 1. as participants in a joint criminal enterprise with the other co-accused to kill the deceased; or 2. as participants in a joint criminal enterprise with the other co-accused to at least inflict grievous bodily harm on the deceased; or 3. as participants in an extended joint criminal enterprise with the other co-accused to assault the deceased, and it was within their contemplation that grievous bodily harm may be intentionally inflicted on the deceased; alternatively 4. the liability of Mr Woods and Mr Hayes arises as accessories before the fact to the murder of the deceased by NH, Mr Harding, Mr Farnsworth, Mr McLachlan and Mr Maxwell, on the basis that Mr Hayes and Mr Woods knew that NH, Mr Harding, Mr Farnsworth, Mr McLachlan and Mr Maxwell would kill, or at least inflict grievous bodily harm on the deceased. 1. Mr Maxwell was a member of the Grudge Bringers, and a "Guardian" in the club. At the time of the alleged murder, Mr Maxwell and his wife, Heather Maxwell, lived together. Mr Farnsworth and his partner Trudi Schwarz were staying with Mr Maxwell at the time. Mr Maxwell drove a camouflage pattern Holden VR utility. 2. The Crown case with respect to Mr Maxwell is that he was a participant in a joint criminal enterprise to kill the deceased. Armed with a loaded firearm, and wearing dark clothing which covered his face, Mr Maxwell attended the home of the deceased in the company of the co-accused who were also armed with loaded firearms. Mr Maxwell was nearby when the co-offenders, armed with loaded firearms, entered the home of the deceased. He was not present in the home when the deceased was shot and killed. The Crown further alleges that he was party to an agreement to destroy the vehicle used in the commission of the offence by fire and was present when that occurred. After the alleged murder, Mr Maxwell knowingly provided a false alibi to police for himself and his co-accused. Expert Evidence on the Hearing 1. The accused relies on the following exhibits: 1. Crown Case Statement and supplementary annexure; 2. defence bundle (volume 2) including: 1. listening device transcription dated 24 September 2020 commencing 4:55pm; 2. listening device audio dated 24 September 2020 at 4:55pm (USB); 3. Electronically Recorded Interview with a Suspected Person (ERISP) dated 24 September 2020; 4. criminal record of James Maxwell; 5. clinical notes of James Maxwell; 6. psychological report of Dr Lennings dated 22 May 2022; 7. psychological report of Dr Lennings dated 8 August 2022; and 8. reference index. 1. two reports of Dr Andrew Ellis dated 1 March 2023; 2. Justice Health medical records; 3. Bloomfield Hospital records; 4. Orange Health Service records; and 5. bundle of 10 photographs. 1. Dr Lennings and Dr Ellis were called to give evidence in the hearing and were cross-examined. 2. The Crown relies upon exhibit G consisting of the following: 1. psychiatric document of Dr O'Dea dated 6 June 2023; 2. statement of Detective Lovell dated 14 December 2020; 3. statement of James Maxwell dated 31 January 2020; 4. support person acknowledgements dated 24 September 2020; 5. custody management records dated 24 September 2022; and 6. criminal history of James Maxwell. 1. The Crown called Dr O'Dea to give evidence in the hearing. Summary of the Expert Reports 1. Dr Andrew Ellis, Forensic Psychiatrist, provided a 13-page report dated 1 March 2023. 2. Dr Ellis opines that the accused is suffering from a mental health impairment (psychotic disorder) which is presently characterised by intermittent hallucinations and previously by delusions. Additionally, the accused presented with a cognitive impairment, being an intellectual disability and a potential neurocognitive disorder related to deterioration, in the context of psychosis and possible vascular damage to the brain. Dr Ellis opines that it is likely that this Court would find the accused unfit to be tried owing to the combination of his psychotic disorder and cognitive impairment. The opinion of Dr Ellis regarding each criteria listed in s 36 is addressed as follows. (a) Understanding the offence the subject of the proceedings 1. The accused has a basic understanding of the offence of murder, however, he has difficulty conceptualising how this translates to conspiracy in a joint criminal enterprise. He showed difficulty with the more complex concept of being present and possibly facilitating or abetting the acts of others. (b) Plead to the charge 1. The accused has an understanding of the basic pleas available to him. He has a more rudimentary ability to remember more complex mental health defences. Of concern, is his potential to change his mind based on social pressures or frustrations, and thereby change his plea. It is not likely he would appreciate the consequence of traversing his plea or changing it periodically in response to his state of mind at the immediate time. (c) Exercise the right to challenge jurors 1. Dr Ellis opines that the accused understands his right to challenge jurors and can exercise this through his legal representatives. (d) Understanding generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged 1. The accused has limited familiarity with the legal system. He has a basic understanding of the roles of persons in court, and that in general, a trial is an investigation of his conduct. He can distinguish between truth and lies. (e) Follow the course of the proceedings so as to understand what is going on in a general sense 1. Dr Ellis opines that the accused presented with some evidence of mild memory difficulties and there was a possibility that the accused would be more anxious in a court environment which may overwhelm his cognitive capacity to attend to, and remember, what had occurred. Dr Ellis' opinion is based on the accused's underlying intellectual disability and subsequent cognitive impairment. (f) Understand the substantial effect of any evidence given against the person 1. The accused has a basic understanding of the types of evidence in a generic case, and how evidence may be used in his proceedings. In this case, where evidence will be presented over weeks, the focus being on his state of mind and intentions when acting, his difficulties with higher-order concepts may lead him to have problems understanding the substantial effects of more complex evidence of motive. (g) Make a defence or answer to the charge 1. While the accused was able to give an account of his movements and mental state in the context of a psychiatric interview, Dr Ellis opines that he changed his account from time to time, often in response to the style of questioning. Dr Ellis concluded that the accused may seek to "close down" in an interview when distressed, by agreeing with the questioner or giving answers that seek to please the questioner. In this way, his ability to make a consistent defence is likely impaired. (h) Instruct the person's legal representative so as to mount a defence and provide the person's version of the facts to that legal representative and to the court if necessary 1. Dr Ellis opines that the accused was able to provide a satisfactory account of events at the material time, albeit limited by his reported memory problems. The accused indicated that he would be able to repeat his account of the facts but may struggle. (i) Decide what defence the person will rely on and make that decision known to the person's legal representatives and the court 1. Dr Ellis opines that the accused held wavering views about what defence or plea he would rely upon. This was based on the accused's desire to resolve things quickly, rather than present a considered defence. Evidence at the Hearing of Dr Andrew Ellis 1. In evidence-in-chief, Dr Ellis adhered to his report maintaining that the accused was unfit for trial. Dr Ellis gave evidence that the accused has a mental health impairment and made a diagnosis of a psychotic disorder. The diagnosis had been characterised by hallucinations in the form of auditory voices and delusions, specifically, beliefs that the accused was being persecuted and a general sense of paranoia and suspicion. 2. Dr Ellis confirmed the diagnosis of intellectual disability. The diagnosis of intellectual disability is based partly on the history of the accused requiring support in schooling; only being able to participate in employment which was not intellectually onerous; and requiring informal support to be independent in the community. Dr Ellis gave evidence about the basis upon which he formed his opinion: "Q. Could you please give us a brief outlines of the basis on which you formed the view that Mr Maxwell is unfit? A. So, firstly looking at whether he has a mental health impairment as per law in terms of a relevant psychiatric diagnosis, I made a diagnosis of a psychotic disorder and I think that's ‑ since having read Dr O'Dea's report, which I think had access to some more treatment records than I did, that that's been a relatively long standing condition. Firstly diagnosed by general practitioner. And it has been characterised by hallucinations in the form of auditory voices that he hears. At times delusions. So, specific beliefs that he is being persecuted and a general sense of paranoia or suspiciousness. He has had treatment for that for some time before these proceedings unrelated. The other is the diagnosis of an intellectual disability which would then correspond to the legal concept of a cognitive impairment. It is my opinion he has both of those categories. The intellectual disability has been characterised partly through the clinical history, the history of requiring support in schooling and only being able to work in jobs that don't tax his intellect and generally requiring informal supports from other people to be independent in the community. But it is also there has been formal psychometric measures performed by Dr Lennings looking at the specific cognitive tasks that fall into the range of intellectual disability. On that basis, I considered he had the two predicates that could lead to finding of unfitness in terms of a mental health impairment and a cognitive impairment." 1. Dr Ellis gave evidence explaining the basis of his conclusion that the accused did not have an understanding of the offence the subject of the proceedings: "A. In terms of the very specific points, firstly, I thought there was an impairment in his understanding of the offence the subject of the proceedings. Q. Could you explain what you mean by that? A. Yes. When I was asking about what he understood he was charged with, he does understand that he is charged with the offence of murder and he understands basically what murder means in terms of a killing someone unlawfully. But when I'm then asking him about the offence subjects of these proceedings, which is about the concept of the joint criminal enterprise and working in a conspiracy with others to effect a murder, he had difficulty understanding that concept. And I came back to him and said a few times about his understanding of that and it also corresponded with what you had found in your conferences with him, that he had difficulty understanding that more complex concept. Then when that has been explained to him several times, it doesn't crystallise and remain with him." 1. Dr Ellis agreed with Dr Christopher Lennings' observations that although he explained to the accused important issues surrounding the concept of evidence at trial, he could not recount such concepts apart from providing a rudimentary response. Dr Ellis gave evidence that this was consistent with an intellectual disability and that the accused's conceptual reasoning and ability to understand more complex problems was limited. Although the accused could understand fundamental concepts, as they became more difficult, his ability reached a "ceiling", and it was difficult for him to comprehend. In this respect, Dr Ellis gave evidence as follows: "Q. Do you agree with Dr Lennings' observations, that although he explained to Mr Maxwell a number of times important issues such as what is evidence, that Mr Maxwell within a half an hour could not explain it apart from a rudimentary response, 'it's what they have against me' and so on, do you agree with that analysis of Dr Lennings? A. Yes, that was similar to what I found at my interview. It is consistent with an intellectual disability and that there is sort of two issues operating. One is conceptual reasoning and the ability to understand more complex concepts. One might be able to understand the fundamentals or basics of a concept, but as it becomes more difficult, that ability will reach a ceiling effect. I think in Mr Maxwell's case, that ceiling has been reached and it is difficult for him to comprehend. Also, his memory is not as good as other people's. So when it is explained to him, he might remember for a brief period of time, but he is not able to then maintain that understanding over a sustained period. That's at a starting level of an issue around that area of fitness." 1. In relation to the accused being placed in a court environment, Dr Ellis said: "A. If you are then placed in an unfamiliar environment where you are more anxious, those cognitive abilities are more likely to be less able to be used. If you have a mental health impairment such as a psychotic condition where you are perhaps distracted by hearing voices or you have an underlying general suspiciousness of other people and processes and a general trepidation and anxiety, then those cognitive abilities can be further eroded. So, I think it is in some ways the combination of things that make it difficult for him to then, you know, understand the offence in this context." 1. In terms of a trial estimated to take 10 weeks, the impact on the accused's stress levels would cause an exacerbation of his auditory hallucinations. His capacity to follow the proceedings, given the complexity of the evidence, would be compromised, particularly as the trial involves numerous co-accused. With respect to this issue, Dr Ellis gave the following evidence: "Q. Just in terms of any trial which is potentially possibly anywhere between two and four months with a number of co‑accused, would that, in your view, impact on his stress and, therefore, exacerbation of voices and inability to hear? A. Yes. So, as part of the instructions it was noted that the trial was likely to be lengthy and involve some more complex concepts than other trials might, and I was taking that into account when assessing whether he would meet the criteria to be fit for this trial. I think that, you know, the length of the trial will impact upon his ability to attend to, focus on, remember, and then apply cognitive reasoning to the inputs that are coming to him. Also, if he has multiple other co‑accused who are giving potentially different accounts to his, his ability to sift through all of that information will be more difficult. And as part of his psychotic illness, he has a general sense of paranoia, and that may well be heightened by multiple people in the court that he may be frightened of." 1. The accused tended to be compliant. This potentially affected his ability to plead to the charge. With respect to this criteria (s 36(1)(b)), Dr Ellis said that he is "sitting on the fence": "Q. You opine that he has an incapacity to plead to the charge; is that right, or do you not? A. So again, I think that there's a concern around his ability to plead to the charge. I think that he does understand the basic meaning of the pleas that are available to him. More complex mental health offences he may struggle with more, but my concern would be that his propensity to change his plea based on those social pressures may be there. Again, if he's feeling frustrated or anxious, wanting things to be over quickly, that he may well, and had described in the past doing something similar, so that there may be that possibility that his ability to plead could be impaired." … Q. Do you say he can or cannot plead to the charge? … A. I think for this particular one I would be sitting on the fence because I think that he can but there is a significant risk, particularly over a longer trial, that he may well change his mind about what his plea is and not based on a rational response to events in the court but in response to his various mental conditions. So I think it is a ‑ it's a balance but I would say that, you know, with ‑ it could be very disruptive to a trial if he makes abrupt changes of mind about what he's going to plead. And, again, if he does change his plea, it is likely to be based on some irrational factors rather than having formed a view about the plea and gone ahead with and maintained it. I think that probably, you know, his capacity to maintain understanding over time ‑ he might have moments of understanding but being able to maintain that ‑ is, I think, a challenge for him." 1. Dr Ellis said that people with an "intellectual disability can be more susceptible to suggestion or social pressure in answering questions", and that there was evidence for this in the accused's case. Dr Ellis gave evidence: "A. Yes, yes, as well as (b) 'a plead to the charge as well'. Obviously, both of those overlap with each other. Yes, so, many people with ‑ or people with ordinary intellect and people with intellectual disability can be more susceptible to suggestion or social pressure in answering questions. There is quite a lot of evidence for that in Mr Maxwell's case. For example, he is often asked 'do you understand something?', and he nods his head and says 'yes' and it becomes obvious later that he didn't understand what was asked of him. … Because of this, you know, propensity to sometimes conform your answer to what you are hoping people will hear rather than thinking through the question and giving what you would genuinely say, his account can change over time and that would then make it difficult for him to give a consistent plea or give a consistent version of events and instructions to be able to defend a charge. That's heightened by that length of the trial and the complexity of it." 1. Dr Ellis was satisfied that the accused could adequately exercise his right to challenge jurors. The accused is able to understand effectively what a juror is and can exercise his right to challenge. 2. Dr Ellis maintained his opinion that the accused has the capacity to understand, in general terms, the nature of a trial. Dr Ellis remarked in cross-examination: "Q. His ability to understand generally the nature of the proceedings as an inquiry into whether a person committed the offence with which the person is charged, do you say he can or cannot understand generally those matters? A. Yes, I think he can understand generally the nature of a trial and the purpose of that. Q. So he meets that criteria? A. Yes, so I would say that he does meet that individual criteria, yes." 1. In his evidence, Dr Ellis confirmed that the accused's cognitive impairment affected his ability to follow the course of the proceedings so as to understand what is going on in a general sense (s 36(1)(e)). While the accused could focus in an interview with a single person, the presence of his cognitive difficulties and their interaction with his mental health condition meant that he would not be able to understand what was taking place in a general sense in the trial. The combination of the accused's limited ability to use conceptual reasoning, memory problems, difficulty shifting his focus of attention, and distraction by voices or paranoia, would impact his ability to follow the course of the proceedings. His lack of ability to be flexible in his thinking was impaired and will present difficulties when the proceedings will likely move from one accused to another, or from one scenario to another. In cross-examination, Dr Ellis said that the accused presented with "great difficulty" following the course of the proceedings: "Q. The next one, ability to follow the course of the proceedings so as to understand what is going on in a general sense, do you say that he meets that criteria or not? A. I'd say this is one where it's clearer that he has much greater difficulty. While he can attend to and focus on an interview with a single person, there's ‑ you know, he's got a number of cognitive difficulties and the interaction of those with his mental health conditions lead to him not really understanding what's going on in a general sense in the Court. I think the combination of that conceptual reasoning, memory problems, difficulty shifting his focus of attention from one thing to another, and then the effect of distraction by voices or paranoia come together to make it, I think, that he couldn't understand what's going on in a general sense. I think perhaps for this morning, where he really, in my view, was not able to understand what the procedure before we started giving evidence was about." 1. The length of the trial would add to the accused's stress and likely exacerbate the "voices or paranoia": "A. I think that could impact upon his ability to follow the course of proceedings, in that the more anxious he was to become, from whatever reason, whether it is entirely self‑generated paranoia or realistic appraisal and anxiety of any threat to him, it is likely to be difficult for him to tease those things apart and understand them, but the end effect would be that he would have an emotion of greater anxiety and fear and then his ability to use conceptual reasoning and memory would be impacted." 1. With respect to the accused's executive functioning, Dr Ellis was asked: "Q. I think one of the things you said to me in conference is that he gets stuck on a view, so if you move to another explanation or position, he can't respond to it because of his cognitive limitations? A. Yes. So, this had been demonstrated by the measures of executive function that Dr Lennings had done and you gave me an example of where he is questioned about one topic and he keeps answering questions about that topic, even though the questioner has moved on to other issues. So, his ability to be flexible in his thinking is impaired. Again, that's another thing that might impact his ability to follow the course of proceedings as they move from one defendant to another or the group to the individual, or, you know, one scenario to another scenario. His ability to follow that is likely to be impaired." 1. Dr Ellis contended that the accused's impairment affects his capacity to understand the substantial effect of any evidence. He has a generic understanding of what evidence is and, in particular, "concrete" forms of evidence. However, he struggled to understand concepts such as joint criminal enterprise, evidence of motive, or evidence of particular mental states. Dr Ellis' evidence in that regard was as follows: "Q. The next criteria on page 11, understand the substantial effect of any evidence given against the person, do you say he was able to ‑ is he or is he not able to understand the substantial effect of any evidence given against him? A. Yes, so I think that he has a generic ‑ as I said, a generic understanding of what evidence is and, in a general sense, particularly concrete forms of evidence like documents or fingerprints or things of that nature. But I think that, particularly on my questioning of him about his understanding of things like joint criminal enterprise or evidence of motive or evidence of particular mental states, I think he struggles with that and I don't think that he can understand the substantial effect of evidence about those sorts of things which, as I understand, could be very important in this sort of case. … Q. ‑‑with his legal representatives where the topic of joint criminal enterprise touched upon. Other than just asking him about those concepts and what they meant, did you endeavour to break them down and explain them to him? A. Yes. Q. How did you do that, in general terms? A. So in general terms I would ask about, you know, what sort of evidence might be presented in Court to show that someone was part of a ‑ had an agreement or a plan together and how would you prove that someone was working together with someone else; how would you demonstrate those sorts of things. I think that it's when you get to this level that he begins to struggle and he understands things in the physical realm much more easily. But once it gets to who was in charge, who's giving instructions, who's taking instructions, who's doing all this, he's not able to answer those kind of questions." 1. The accused's impairment also affects his capacity to make a defence or answer to the charge. Dr Ellis gave evidence that while it was possible for the accused to make a defence initially, his ability to sustain those instructions across a lengthy trial could waver due to his emotional state changing over the course of the trial. With respect to s 36(1)(g), and the accused's ability to make a defence or answer to the charge, Dr Ellis was asked: "Q. Do you say he had the ability to make a defence or answer to the charge? A. So, again, I think that this goes to his ‑ relates I think to his ability to enter a plea, is that, like, he was able to give me an account of what his version of events was at that time. But, you know, as part of my instructions I'd been told by his lawyers that they had had difficulty getting him to give instructions and I could see in the interview questions that he was likely susceptible to change his response to the type of questions that are being asked. So I think while it is possible for him to be able to make a defence or answer to the charge, his ability to sustain that across a lengthy trial could well waver, again because of his changeable ‑ his response to his emotional state as it changes over the time of the trial. And, again, based off what had happened beforehand with his different accounts to different people, that it's really about being consistent across the trial could be something that is of difficulty. I think there may be times during a trial where he is able to calmly state his point of view and get that there, but I'm thinking also about his ability to sustain that across the course of a trial." 1. In relation to s 36(1)(h), Dr Ellis said that the accused might be able to instruct his legal representatives and provide a version of the events, but it is likely to fluctuate. Dr Ellis was cross-examined on this issue: "Q. Can I suggest to you that in all the material ‑ I will start again. He is able to provide a version of events to the police and in two different interviews? A. Yes. Q. He is able to provide a version of events to you, I'm not asking you what that is, but he was able to provide a version of events to you? A. Yes. Q. He was able to provide a version of event to Dr O'Dea and to Dr Lennings, is that right? A. Yes. Q. What of any of that material suggests to you that he won't be able to, if he chooses to, provide a version of events? A. I think it is about providing a consistent version of events and he has got to provide it to his legal representatives and he is got to do it over the course of the trial in response to information as it comes in. So, I think there is, again ‑ I think he may be able to do it at points in time, but the ability to sustain that I think is questionable. Q. Is it correct that an important part of your opinion in relation to sub paragraph (h) is that, as you perceive it, there is no consistency in his version of events, is that right, that it changes? A. Yes." 1. Dr Ellis concluded that the accused's impairment increased the propensity to changeability. In a stressful state, he is prone to changeability which in turn disrupts his ability to provide a version of events and instruct his lawyers. 2. Dr Ellis gave evidence that there is some overlap between the criteria set out in s 36(1)(g)–(i). The interaction between the accused's intellectual disability and mental illness operates to impair his capacity with respect to these criteria. Reports of Dr Christopher Lennings 1. Dr Christopher Lennings, Clinical and Forensic Psychologist, provided a 12-page report which was tendered by defence counsel dated 22 May 2022, and a 6-page report dated 8 August 2022. The report dated 22 May 2022, focused on issues relating to the admissibility of the ERISP. The Crown did not press the tender of the ERISP. However, the contents of this report remain relevant to the question of fitness. 2. Dr Lennings opines that the accused presented with significant cognitive and executive functioning deficits, with a slightly more functional short-term memory, but a style of responding that was meek and eager to please. As a consequence, the accused agreed with questions he had little understanding of. 3. In his report dated 22 May 2022, Dr Lennings conducted numerous cognitive assessments on the accused which included the following: 1. Behaviour Rating Inventory of Executive Function – Self Report (BRIEF-SR); 2. Wechsler Abbreviated Scale of Intelligence (WASI) 2nd Edition; 3. Verbal Memory Scale of Wechsler Memory Scale Revised (WMS) 4th Edition; 4. Digit Span and Coding subtests of the Wechsler Adult Intelligence Scale (WAIS) 4th Edition; 5. Trail Making Test of Kaplan D-KEFS (neuropsychological battery); and 6. the Rey Complex Figure Test. 1. The accused was administered the BRIEF-SR. The test is a measure of the ability to solve problems. The accused's response to the BRIEF-SR was valid. His scores revealed problems in both behavioural and cognitive control, and he presented with impaired executive function. His profile suggested a person who has difficulties inhibiting behaviour once a behavioural chain is activated, and difficulties shifting between tasks. He has a poor working memory and is poor at planning and organising behaviour. He is a person who responds to direction but has little initiative and struggles to monitor, or be aware of, his thoughts and feelings. 2. The accused was administered the WASI. The WASI is a measure of intelligence consisting of four subtests. The accused's performance was reasonably even across the subtests, suggesting that a reliable estimate was achieved. His overall intelligence is best described as very low, falling into the bottom 0.5% of the population. His verbal skills were also found to be low, falling into the bottom 1% of the population. His non-verbal skills scored in the bottom 2% of the population. Overall, Dr Lennings opines that his cognitive ability is consistent with someone with an intellectual disability. 3. The accused was administered the Coding (Digital Symbol) subtest of the WAIS. The accused's performance on this test was commensurate with his assessed intelligence, falling into the bottom 2% of the population. His thought processes are slow and are also impaired. The accused was administered the Digit Span subtest of the WAIS. The accused's performance on this test was consistent with his assessed IQ. He scored in the bottom 5% of the population. 4. To further assess executive functioning, the accused was asked to complete the Trail Making subtest from the Kaplan D-KEFS. The Trail Making Test measures the flexibility of thinking on a visual-motor sequencing task. It requires the person to join a sequence of numbers and alternate between a sequence of numbers and letters. The accused's performance on this test was measured by both time to completion and error scores. On both measures, he was impaired. His error score of three was at the 7th percentile for his age. 5. The accused was administered the WMS. His overall verbal memory score placed him in the bottom 10% of the population, suggesting that whilst by conventional standards he has a poor verbal memory, it is better than expected, based on his other cognitive tests. 6. The accused was administered the Rey Complex Figure Test. The Rey Complex Figure Test is a measure of executive functioning and memory. On both the copy and the recall tasks, the accused's performance was grossly impaired. A feature of his performance was that he retained the gestalt but could not recall details. His performance was not consistent with brain damage, rather it reflected severe cognitive limitation. 7. Dr Lennings concluded: "Mr Maxwell is a man with significant cognitive limitations. His performance on a range of measures assessing neurocognitive function were consistent, including on measures with in-built dissimulations measures. He is very likely intellectually disabled, although I did not have available an informant I could ask to complete an Activities of Daily Living scale. Hence, the assessment can confidently say he is of very low cognitive ability, with poor memory and very limited cognitive function but cannot formally meet all the criteria for a diagnosis of mental retardation as the adaptive function assessment could not be undertaken. It is likely that over the years he has learnt some basic adaptive skills however he is extremely reliant on the direction [of] others in his environment give him. He lacks the ability to initiate behaviour, to organise himself, to correct errors easily, to manage impulsive choices, or shift between tasks. … I note I have not been asked to assess fitness, nonetheless his ability to instruct in his defence is impaired at best. He can give some broad understanding of the events but without detail, ability to temporally sequence, and, if asked questions that provide detail, will then lack an ability to discriminate what he has heard from others as to what he personally experienced." 1. In his report dated 8 August 2022, Dr Lennings conducted a review utilising part of a protocol to assess fitness in adults. This protocol, the Australian and New Zealand Evaluation of Fitness to Stand Trial – Revised (ANZ-EFST-R) has been subject to evaluation and preliminary results are supportive of its use as a structured interview for the purpose of assessing fitness. 2. In order to explore whether the accused understood the concept of evidence, Dr Lennings explained that there is a range of material that could constitute evidence, such as photographs, videos, statements, and parts of interviews he had given to police. Approximately 30 minutes after explaining the concept of "evidence", the accused was unable to advance on his original answer other than saying evidence was statements or perhaps messages. He was unable to learn a more sophisticated understanding of evidence other than "stuff that they may have against you". Suggestive that he has little understanding of how he might evaluate evidence or how he might assist his lawyer in responding to evidence which is used against him. 3. The accused's understanding of the evidence his counsel might seek to adduce was limited to an explanation of "all the evidence they might have is the same as the other people and that is evidence against me". Dr Lennings opines that the accused appeared to "have done no learning" as a result of his attempt to explain to him the difference between evidence that might be useful to him, as opposed to evidence that might be used against him. This failure to understand suggests that the accused has great difficulties in providing instructions as to the nature of the evidence against him or the nature of evidence that might be beneficial to him. 4. In his report, Dr Lennings stated that the accused appeared to be able to provide a narrative of events consistently across the two police interviews and that he can provide some basic instructions to counsel as to the "ultimate issue". Evidence of Dr Christopher Lennings During the Hearing (a) Understanding the offence the subject of the proceedings 1. Dr Lennings gave evidence in this Court on 11 September 2023. He maintained that he had not resiled from the findings set out in his reports. 2. In examination-in-chief, Dr Lennings gave evidence that the accused did not have the capacity to understand the offence the subject of the proceedings for numerous reasons. Dr Lennings gave the following evidence: "Q. It would assist me if you address these criteria as they are set out in section 36, so his capacity to understand the offence the subject of the proceedings. A. Okay. It is my view that Mr Maxwell does not have that capacity for quite a few reasons, really. The first is that as I understand the offence it is to be involved as part of the planning and direction of a certain sequence of behaviour. It is my view that Mr Maxwell is not capable of operating independently outside of the direction of others. The issue of his capacity or adaptive ability is that he really can only function within a narrow environment and with the support and direction of others. To the extent that the offence requires him to consider how he might be involved in initiation or direction he can't do that because it is not ‑ it is foreign to the way that he operates as a person with significant mental health and cognitive and sensory difficulties." (b) Plead to the charge 1. Dr Lennings gave evidence that the accused is unable to plead to the charge. Dr Lennings said in examination-in-chief: "Q. I take it that what you have just expressed your views would also affect or have a say in implications to category B and that's his capacity to plead to the charge. That's the second category of the fitness set out in section 36? A. My difficulty is that he's unable, in my view, to clearly plead to the charge because he doesn't really understand the dimensions of the charge. When I spoke to him anyway he was aware that the police were accusing him of murder. The charge is something else. It's not criminal conspiracy ‑ I have just gone blank for the moment ‑ if you could remind me? Q. A joint criminal enterprise? A. That's right, a joint criminal enterprise, and he doesn't understand that. He understands that someone has told him that he's killed someone, but he doesn't understand that he was part of any planning or process. So he can't, in my view, he can't plead to the charge because he doesn't understand what the charge is about." (c) Exercise the right to challenge jurors 1. In examination-in-chief, Dr Lennings gave evidence that the accused could not exercise his right to challenge jurors. Dr Lennings said the following with respect to this criteria: "Q. There some agreement between Dr O'Dea and Dr Ellis that he understands the exercise of the right to challenge jurors. He can do that. I don't what your view is on that? A. Well, I don't see how he could do that. I mean I think he could understand if someone said to him, look, you can say you don't want somebody, he would arbitrarily say, 'Yeah, I don't want that person'. But he wouldn't have a reason for that. He wouldn't know what he was looking for. You need to have some capacity to evaluate and to my mind he does to not have that capacity. He can object to a juror, but he wouldn't know why he was objecting. He would just be objecting because he thinks, oh you've got to object to something." (d) Understanding generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged 1. In examination-in-chief, Dr Lennings gave evidence that while the accused could understand that he was in court, he could not understand "much more about it than that". Dr Lennings gave evidence that the accused could not understand that his trial is an enquiry into being part of a joint criminal enterprise. (e) Follow the course of the proceedings so as to understand what is going on in a general sense 1. In examination-in-chief, Dr Lennings gave evidence that the presence of the accused's cognitive and mental health impairments will significantly impact his capacity to follow or understand the proceedings. Dr Lennings noted that the accused's sensory impairment will also compound these difficulties. Dr Lennings gave evidence that the difficulties the accused would face cannot be adequately accommodated by breaks in the proceedings. Dr Lennings said the following in this respect: "Q. Dr O'Dea seems to agree with both you and Dr Ellis that Mr Maxwell had difficulties following the proceedings, but he was of the view that that could be accommodated in various ways. What is your view on accommodating Mr Maxwell? How could that take place in the context of a multiple co‑accused trial and so on with jurors, et cetera? A. Yes. I think it depends on the view you have of the level of impairment that exists. In my view the level of impairment is fairly severe, quite profound. And I don't see how you could accommodate that by breaks. If you had a break every five minutes may be, every 10 minutes, we're talking about a short term memory buffer. A short term memory buffer is not going to last 20 minutes. It's not going to last 30 minutes." 1. Dr Lennings said that the accused's difficulties with hearing will additionally affect his ability to understand the offence. Dr Lennings gave the following evidence in examination-in-chief: "Q. You understand that he has also difficulties hearing, does that in your view impact at all on him being able to follow proceedings, for example, in court ‑ I'm going slightly out of turn ‑ but how do you say that his hearing, if at all, impairs on his ability to follow proceedings? … A. Secondly, it is very hard to hear when you can't hear. You get tired quickly. You sit back. You just let the sound wash over and you wait for someone to tell you what has been going on. So, the issue about hearing impairment, depending on how extensive it is, relates both to understanding of what is being said and even bothering to pay attention to what is being said. You look attentive, but really you are just not there." (f) Understand the substantial effect of any evidence given against the person 1. In examination-in-chief, Dr Lennings stated that the accused was unable to understand what was meant by "evidence" in any relevant way. Dr Lennings gave evidence that the impact of the accused's impairment on his ability to understand the substantial effect of any evidence given in support of the prosecution, could not be ameliorated with breaks. In this respect, Dr Lennings said the following: "Q. Dr O'Dea states that 'Mr Maxwell's condition is likely to impact on his ability to understand substantial effect of any evidence that may be given in support of the prosecution and likely to impact on his ability to instruct his solicitors accordingly'. But he says that that can be essentially cured by adequate and appropriate support. He is saying that he is agreeing with you and with Dr Ellis about the fact that his ability to follow proceedings is impaired, but it can be cured? A. Well as I read that paragraph that's what I thought he was saying, but he thought there was some amelioration possible. Q. What is your response to that comment particularly? A. I don't think there can be that kind of amelioration. I think the difficulty that the person has such a significant impairment that it is going to impact on understanding and capacity to provide instructions. It's going to impact on his understanding and capacity to provide instructions. It's not like he just has an anxiety disorder that he just needs a descent deep breathing to calm him down. This is a really serious permanent impairment." (g) Make a defence or answer to the charge 1. In examination-in-chief, Dr Lennings gave evidence that the accused could not make a defence or answer to the charge (s 36(1)(g)). Dr Lennings gave the following evidence: "Q. The next category, subsection G of 36, make a defence or answer to the charge. I know you have covered a lot of this, but if you could just deal with that? A. I don't see how he can do that because he doesn't understand the charge in the first place and he doesn't have the capacity intellectually to be able to respond to that." (h) Instruct the person's legal representative so as to mount a defence and provide the person's version of the facts to that legal representative and to the court if necessary 1. In examination-in-chief, Dr Lennings said that the accused was unable to instruct his legal representatives. With respect to s 36(1)(h), Dr Lennings said: "Q. Thank you. The next one, instruct his legal representatives so as to mount a defence and provide the person's version of facts to that legal representative and to the Court if necessary? A. Yes. I think the issues go back to what I was talking about in terms of being able to follow the proceedings. He is unable to instruct because he doesn't actually know what's going on around him in a sufficient way to provide you with coherent instructions. If he doesn't understand he can't instruct." (i) Decide what defence the person will rely on and make that decision known to the person's legal representatives and the court 1. Dr Lennings gave further evidence that the accused was unable to decide what defence he will rely on and make that decision known to his legal representatives and the court (s 36(1)(i)). Dr Lennings said the following in examination-in-chief: "Q. The next category is to decide what defence a person will rely on and make that decision known to the person's legal representative and the Court? A. I think the answer has to be same. He can't provide you with information that would assist in that and I will give you an example again. I talked to him about what would happen if he was asked to be, to give evidence in Court. Now a person has to consider the implications of that. He was unable to do that. He just simply said, 'Well, you know, if I was asked to do it, I would do it'. He has no capacity to any independent judgment. He has no capacity to reflect on the meaning of those implications of a particular thing, even when it's personally relevant. He just does things because that's what people tell him he should do. I don't see how he could provide you or provide anybody with a concept of a defence. I don't even know how to actually explain that to him to tell you the truth." Report of Dr Jeremy O'Dea 1. Dr Jeremy O'Dea, Forensic Psychiatrist, provided a 17-page report which was tendered by the Crown, dated 6 June 2023. Dr O'Dea opines that on balance, the accused is fit for trial. 2. Dr O'Dea considered the matters raised by Dr Ellis and Dr Lennings and acknowledged that the accused's mental state and intellectual functioning would likely impact his ability to understand the substantial effect of any evidence that may be given in support of the prosecution and that it was likely to impact on his ability to instruct his solicitors accordingly. However, he was of the view that on balance, and with adequate and appropriate support by the court, the accused would be able to follow the course of the proceedings; would be able to understand the substantial effect of any evidence that may be given in support of the prosecution; and to instruct his solicitors accordingly in order to make an adequate defence to the charges. 3. Dr O'Dea opines that while the accused had attracted a number of different psychiatric diagnoses, his clinical condition would be best understood as meeting the criteria for a schizophrenic spectrum disorder, complicated by substance abuse and intellectual disability. 4. Dr O'Dea noted the accused's history of learning and intellectual difficulties, being reported as a very low cognitive ability as assessed by Dr Lennings in April, May and August 2022; his history of adaptive functioning; and his presentation with limited but adequate overall intellectual functioning. Dr O'Dea concluded that while the accused may meet the criteria for intellectual disability, the level of his disability is likely to be mild or borderline. 5. Dr O'Dea opines that the accused's ongoing auditory hallucinations and mood disturbances, as part of his overall schizophrenic spectrum disorder, would be considered ongoing disturbances of perception and mood, and are significant for clinical diagnostic purposes. Dr O'Dea concluded that the accused has a mental health impairment, as defined in s 4 of the Act. 6. However, while the accused may have borderline intellectual functioning or a mild intellectual disability, his level of adaptive functioning may preclude him from meeting the criteria of a cognitive impairment as defined in s 5 of the Act. 7. The accused was able to convey an adequate understanding of the charges against him, the various pleas available to him and their consequences, the various roles and responsibilities of individuals present in his proceedings, and his rights throughout the proceedings. He also appeared to be able to convey a defence. 8. Ultimately, Dr O'Dea was of the view that although the accused's trial may potentially impact on his psychiatric status and associated cognitive functioning, adequate and appropriate accommodation by the Court, such as more detailed explanations, regular meal breaks and the use of appropriate support persons, are likely to enhance his fitness to be tried. Evidence at the Hearing of Dr Jeremy O'Dea (a) Understanding the offence the subject of the proceedings 1. Dr O'Dea gave evidence that the accused has the capacity to understand the offence the subject of the proceedings. In evidence-in-chief, Dr O'Dea said: "Q. So the first category was whether the accused has the capacity to understand the offence the subject of the proceedings. Dr Ellis expressed the view that the accused did not have that capacity and in that context expressed a particular concern about the accused's understanding of the concept of joint criminal enterprise. First of all, could you explain why you took the view that the accused did have that capacity and could you comment specifically on the issue raised by Dr Ellis? A. Obviously the issue of joint criminal enterprise is something that is more complex. The information that Mr Maxwell gave me seemed to point to his understanding that there was, in terms of a joint criminal enterprise, involvement by those people, in particular himself, in the planning of the murder and in the execution of the murder, if you like, and I took the view that he was able to, in conjunction with that understanding, to give what appeared to be the defence he was going to be relying on in relation to his involvement in the conspiracy. That being said, I didn't go into great detail with him about clarifying with him about clarifying with him what the joint criminal enterprise was and it is not clear to me that other people have attempted to do that or at least described that. … Q. Is there any other— A. I hasten to add that that doesn't mean he has a 100% full complete understanding of the offence. The question would be in terms of capacity whether, with his solicitors, he is able to reach a satisfactory level of understanding of the offence in order to mount a defence. And whilst I'm guided by his solicitors in that regard, my assessment of it, when I interviewed him, was that he appeared able to have that capacity." 1. Dr O'Dea gave evidence that questions of the accused's capacity to understand the offence the subject of the proceedings would be in terms of whether, with his solicitors, he is able to reach a satisfactory level of understanding of the offence in order to mount a defence. According to Dr O'Dea, the accused appeared to have that capacity. (b) Plead to the charge 1. Dr O'Dea gave evidence that the accused is able to plead to the charge. In evidence-in-chief, Dr O'Dea said the following: "Q. … The second category relates to his capacity to plead to the charge. Now in respect of this matter, Dr Ellis indicated that he sat on the fence. To paraphrase, his concern was that the accused might have the potential to change his plea. Can you indicate why you opine the accused was able to plead to the charge and in so doing could you specifically address the concern that Dr Ellis raised that led him to ‑ well that Dr Ellis raised? A. Of course I'm not in a position to say that he may not change his plea through the trial and notwithstanding the fact that, as I understand it, there is an allegation that he gave an alibi in his first statement to police. Since that time, as I read it, he has given a pretty, a reasonably, should say I, consistent account of his involvement in the matter and he gave me a pretty clear understanding of the plea that he would want to enter and I didn't get a sense from that that he might change it on the basis of, you know, cognitive problems related to intellectual impairment or mental health issues." (e) Follow the course of the proceedings so as to understand what is going on in a general sense 1. Dr O'Dea gave evidence that the accused has the capacity to follow the course of the proceedings so as to understand what is going on in a general sense. However, he said that the accused presented with problems relating to his memory and being anxious in court. Dr O'Dea gave the following evidence: "Q. … You will see in his report, Dr Ellis, and he gave evidence to a similar effect there, at page 11 referred in particular, in coming to his view contrary to yours, to the possibility the accused would become anxious in the court environment and also his memory difficulties. Could you, first of all, briefly explain why you took the view that he had that capacity and in that context address the issue of memory and him being anxious in court, referring as relevant to your observation of him in his interviews and your interview with him? "A. … I took the view that Mr Maxwell did have problems in those regards. That is that on the basis of his, at least his intellectual functioning, if not his mental health depending on the progress of his mental health, he was likely to have some problems in following the course of proceedings and understanding the substantial effect of any evidence given against him and instructing his solicitors accordingly. But the nature and extent of the impairment that he has, I did not take the view it was of a level that meant that he may not be able to reach the minimum requirements for fitness, particularly, as I pointed out, with ongoing treatment of his mental illnesses which I think he is resuming, and the accommodations by the Court. That being said, as I have said, it is something that I'm also guided by his solicitors and if they're giving him instructions about things that might or might not happen through the Court, if that became a problem then that would need to be reconsidered. But in my dealings with him and taking into consideration his intellectual functioning, I felt that he was, whilst impaired, able to reach those minimum standards." 1. In relation to Dr O'Dea's reference to "accommodations by the Court", he was asked: "[Her Honour]. Can I just ask, Doctor, you referred to 'accommodation by the Court', it may be something you were going to go to, what sorts of things are you thinking about when you refer to accommodation by the Court to facilitate his understanding of the proceedings, what sort of things? A. The kind of things I would be talking about is obviously through his solicitors having the opportunity for the Court proceedings to, at various times, usually on the advice of his solicitors, to pause so that the solicitor can discuss with him the evidence that's been given and the implications of that and then seek instructions and do so in a way that is perhaps more regimented than might be usually the case. Of course, as always, making reference to accommodations of the Court, we need to take into consideration whether the Court is in a position to be able to do that. I think the kind of thing I'm making reference to there is the kind of thing that the Courts, it is unlikely to be overbearing for the Courts because as I referred to when I was going through the evidence with him, he seemed to be able to concentrate and understand the questions I was putting to him." 1. In relation to evidence of mild memory difficulties impacting on his capacity to follow the proceedings, Dr O'Dea gave the following in evidence-in-chief: "Q. Just finally on category E, Dr Ellis referred also to there being some evidence of mild memory difficulties. Do you have any comment to make about his memory difficulties and how that might impact on this category? A. Well I would accept that he has mild memory difficulties and, as I have said, that may have some impact upon things but from my point of view the question is obviously whether that would impact such that it would bring him below the minimum standards required and with the assistance of his solicitors and others, I took the view that his memory problems may not bring him below the required standard and certainly, in my interview with him, his memory didn't appear to impact upon his ability to give me adequate account of the defence he was going to rely on." (f) Understand the substantial effect of any evidence given against the person 1. Dr O'Dea gave evidence that the accused has the capacity to understand the substantial effect of any evidence given against him. Dr O'Dea was asked to comment on Dr Ellis' evidence referring to the accused's difficulty in understanding concepts such as motive and mental state. In evidence-in-chief, Dr O'Dea said the following: "Q. Category F, understand the substantial effect of any evidence given against the person, can I ask you to firstly briefly encapsulate your reason for concluding that the accused had that relevant capacity and then also comment on when Dr Ellis gave evidence he referred in particular to the accused's difficulty in understanding concepts such as motive and mental state. Can you address both of those matters? A. Well again as I have said, there is an impairment, the question is the nature and extent of it. I am guided by his solicitors and their ability to explain that to him. I think the idea of motive or other concepts in the law are things that people have varying degrees of understanding of. The question is what level of understanding of somebody is required, and certainly in my interview with him, it didn't appear that he had a level of understanding that would have impacted in that regard. The next thing, of course, would be what kind of evidence it is that's being put against him and it is not for me to surmise that, but again, it is a matter in his conferences, through the Courts, with his solicitors and how he understands that evidence. But of course I can only go on, for example, when I raised some evidence that was being put against him or at least might have been put against him in terms of him entering the house, he was able to understand that and give a clear rebuttal of it." (g) Make a defence or answer to the charge 1. Dr O'Dea gave evidence that the accused has the capacity to make a defence or answer to the charge. With respect to the accused becoming stressed, Dr O'Dea accepted that the accused has poor stress management but responds well to targeted intervention. In evidence-in-chief, Dr O'Dea said: "Q. I will start with G in any event and we will see if there is anything further to add in relation to the other categories. In relation to G, make or answer a defence to the charge, your view is that he did have the capacity to make or does have the capacity to make a defence or answer to the charge? A. Well I'm guided by what defence or answer he gave me which ‑ I'm obviously guided by the Courts and it is ultimately their decision ‑ but I took the view that he had an ability through that to make a defence to the charge and his defence was at a point, as I enunciated in my report, which obviously is not for me to say it is an able or a good defence but at least it is a clear defence. Q. Then, in his report, Dr Ellis refers to the fact that the accused may become distressed. You have given evidence a little while ago in relation to another category about the topic of the accused becoming distressed and indicated that in your view, if practicable, steps could be taken by the Court, is there anything else you want to add on that— A. I think the issue of stress and anxiety is an important one in Mr Maxwell's case because his psychiatric history is one of repeated psychiatric involvement in the context of stress. So he has poor stress management issues. What was striking about the history is that with brief and targeted interventions, his anxiety and distress have been, it would appear, ameliorated very quickly without lengthy psychiatric admissions and there was reference in his psychiatric history to him responding well to medication and treatment. It was of note that when I saw him he told me, and I have no reason to disbelieve him, that his medications had been ceased and that, of course, was a significant concern but nevertheless he was able to sit through two lengthy interviews with me and did not appear unduly distressed and I understand that he has been put back on the medication which is very encouraging and that, I think, will help manage his risk of anxiety and distress together with support through the Court as we have talked about. That, I think, is likely to be able to allow him to follow the Court and make a defence without being impaired to a level that is below the standard by virtue of that distress." (h) Instruct the person's legal representative so as to mount a defence and provide the person's version of the facts to that legal representative and to the court if necessary 1. Dr O'Dea maintained his opinion, as expressed in his report, that the accused would be able to instruct his legal representatives and make an adequate defence to the charge. Consideration 1. The question of an accused person's fitness to stand trial is to be found in Part 4 of the Act. Division 1 of the Act sets out preliminary matters to be taken into account: see ss 35–39. 2. The test contained in s 36 relevantly provides: 36 Fitness test (1) For the purposes of proceedings to which this Part applies, a person is taken to be unfit to be tried for an offence if the person, because the person has a mental health impairment or cognitive impairment, or both, or for another reason, cannot do one or more of the following— (a) understand the offence the subject of the proceedings, (b) plead to the charge, (c) exercise the right to challenge jurors, (d) understand generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged, (e) follow the course of the proceedings so as to understand what is going on in a general sense, (f) understand the substantial effect of any evidence given against the person, (g) make a defence or answer to the charge, (h) instruct the person's legal representative so as to mount a defence and provide the person's version of the facts to that legal representative and to the court if necessary, (i) decide what defence the person will rely on and make that decision known to the person's legal representative and the court. (2) This section does not limit the grounds on which a court may consider a person to be unfit to be tried for an offence. 1. Section 37 of the Act provides for when the question of fitness may be raised, in the following terms: 37 When question of unfitness may be raised (1) The question of a defendant's unfitness to be tried for an offence is, so far as practicable, to be raised before the defendant is arraigned on a charge in respect of the offence but may be raised at any time during the course of the hearing of the proceedings in respect of the offence. (2) The question of a defendant's unfitness to be tried for an offence may be raised on more than one occasion in the same proceedings. 1. Section 44(5) of the Act provides the matters which the Court may consider in determining whether a defendant is unfit to be tried for an offence: 44 Inquiry procedures … (5) In addition to any other matter the court may consider in determining whether the defendant is unfit to be tried for an offence, the court is to consider the following— (a) whether the trial process can be modified, or assistance provided, to facilitate the defendant's understanding and effective participation in the trial, (b) the likely length and complexity of the trial, (c) whether the defendant is represented by an Australian legal practitioner, or can obtain representation by an Australian legal practitioner. 1. Section 47–53 of the Act deal with the consequences of a finding that a person is unfit. 2. In R v Risi [2021] NSWSC 769, Beech-Jones J (as his Honour then was) pointed out that s 47 of the Act presents the Court with a "binary choice" and that: "[55] The subsection does not contemplate the possibility that the Court may be in a state of uncertainty about whether one or another is the correct position. The contrast between the wording of the two sections suggests that a finding in terms of s 47(1)(b), the effect of which will be to exclude the MHRT from assessment of the accused, is one that should only be made if there is a real certainty as to the accused's lack of fitness during the relevant 12 month period." 1. His Honour discussed the operation of ss 47–51 of the Act in the following terms: "[11] Section 48 provides that, if a finding is made in accordance with s 47(1)(b), then the Court is then to deal with the matter in accordance with Division 3 of Part 4 of the Act concerning special hearings. [12] Section 49(1) provides that if a finding is made in accordance with s 47(1)(a) then the Court must refer the relevant defendant to the Mental Health Review Tribunal 'for review'. Sections 50 and 51 of the Act deal with that review. [13] In short, the outcome will either be a referral of the accused back to the Court to proceed in accordance with usual trial processes or for the accused to be dealt with by way of special hearing under Division 3." 1. A person's fitness is to be determined on the balance of probabilities. Such an inquiry is not to be conducted in an adversarial manner. There is no onus of proof in relation to such an inquiry: see ss 38, 44(3) and 44(4) of the Act. 2. Section 36 of the Act reflects the common law test stated in R v Presser [1958] VR 45 (Presser), which was held by the High Court in Kesavarajah v The Queen (1994) 181 CLR 230 at 245–246; [1994] HCA 41, to state the essence of what is required for an accused to be fit at common law. The test, both at common law and as set out in s 36 of the Act, identifies the minimum standards which need to be met before an accused can be tried without unfairness or injustice to him/her. Put another way, they are minimum standards required to ensure effective participation by an accused in his/her trial. 3. The list of relevant criteria is not exhaustive and does not limit the grounds on which a court may consider a person to be unfit to be tried for an offence: see s 36(2) of the Act. 4. The nature, length, and complexity of the trial is relevant to the question as to whether Mr Maxwell is unfit to be tried. The trial involves a joint indictment relating to six accused (including Mr Maxwell). At the beginning of this judgment, I summarised, in brief terms, the Crown case against Mr Maxwell. However, the proposed evidence is more extensive and includes witness testimony, telephone intercepts, listening device material, and at least some digital communication, as well as expert evidence in the field of ballistics. 5. Although six separate trials, they will be heard jointly for convenience. While some of the evidence will not relate to Mr Maxwell directly, it will be admissible against him. The Crown relies upon two bases of liability for murder against this accused, namely joint criminal enterprise and extended joint criminal enterprise. 6. Concepts such as planning; agreement (proved by words, actions or inferences drawn from proved facts); and participation by presence, assistance and/or encouragement, are central to the Crown case. The Crown Case Statement reveals the complexity of the trial, both factually and conceptually. Furthermore, the estimate of the trial is approximately 8–10 weeks. 7. It is in this context that I have considered the expert evidence as it bears upon the criteria under s 36. The three experts agree that Mr Maxwell is a person who has a mental health impairment, pursuant to s 4(1) of the Act. 8. Dr Ellis and Dr Lennings are also in agreement that Mr Maxwell is a person who has a cognitive impairment pursuant to s 5(1) of the Act. Although Dr O'Dea accepts that Mr Maxwell has an ongoing intellectual impairment, his capacity for adaptive functioning means that he does not suffer from a cognitive impairment, as comprehended by s 5(1) of the Act. Dr O'Dea's finding that Mr Maxwell does not satisfy the definition of cognitive impairment under the Act, does not preclude a finding that he is unfit to be tried. Section 36(1) of the Act provides that a person is taken to be unfit to be tried for an offence if the person, because the person has a mental health impairment or cognitive impairment, or both, or for any reason, cannot do one or more of the things listed in ss 36(1)(a)–(i) of the Act. 9. Dr O'Dea acknowledged that the accused's mental state and intellectual functioning would likely impact his ability to understand the substantial effect of any evidence that may be given in support of the prosecution and that it was likely to impact on his ability to instruct his legal representatives. However, Dr O'Dea concluded that with adequate and appropriate support by the Court, Mr Maxwell would be able to follow the proceedings; understand the substantial effect of any evidence that may be given in the trial; and instruct his legal representatives with a view to making an adequate defence to the charge. 10. In terms of the accommodation that could be made to assist Mr Maxwell, it was suggested that regular breaks could be taken to afford him regular opportunities to confer with his legal representatives. It is unclear to me as to the regularity of the breaks that would be required. The possibility that half-hourly or hourly breaks could be afforded to Mr Maxwell, giving him sufficient time to confer with his legal representatives, fails to appreciate the practical difficulties that would be caused in the trial. There are five other accused. Each accused is in custody. If Mr Maxwell were afforded the opportunity on a regular basis to confer with his lawyers, would this happen in the courtroom, requiring the other five accused to be taken back to the cells separately? Would it require Mr Maxwell to be removed from the courtroom and placed into a cell, while the other accused remained in the court waiting? Is it practical to have the jury sent back to the jury room every half-hour or hour to accommodate Mr Maxwell? 11. I am not persuaded that sufficient accommodations could be made by the Court to ameliorate the difficulties that would be faced by Mr Maxwell. 12. I turn to consider the s 36 criteria. I am satisfied, on a balance of probabilities, that Mr Maxwell does not meet the following minimum standards required to be tried. 13. Although I am satisfied that Mr Maxwell is able to understand that the offence of murder relates to the unlawful killing of another, I am not satisfied that he has the capacity to understand the two bases of liability relied upon by the prosecution, namely joint criminal enterprise and extended joint criminal enterprise. While the material does not establish that his legal representatives explained the concepts to him in an effort to ascertain whether he had the capacity to understand them, it is clear from the expert evidence of Dr Ellis and Dr Lennings that Mr Maxwell's conceptual reasoning and his ability to understand more complex issues is limited. While I am satisfied that Mr Maxwell has a rudimentary understanding of the offence of murder, I am not satisfied he has an understanding of the bases of liability upon which he is said to be guilty of murder: see s 36(1)(a) of the Act. 14. I am satisfied that Mr Maxwell is able to plead to the charge and exercise the right to challenge jurors. Although some concern has been expressed about the potential to change his mind based on social pressures or frustrations, Mr Maxwell does understand the difference between a plea of guilty and plea of not guilty: see ss 36(1)(b) and (c) of the Act. 15. I am satisfied that Mr Maxwell has a basic understanding of the roles of persons in court and, in general terms, understands the nature of the proceedings as an enquiry into whether he committed the offence with which he is charged. 16. I am not satisfied that Mr Maxwell can follow the course of the proceedings so as to understand what is going on in a general sense, nor does he have the capacity to understand the substantial effect of any evidence given against him: see ss 36(1)(e) and (f) of the Act. Although the concept of evidence at trial was explained to Mr Maxwell, he could not recount the concept, other than providing a rudimentary response that evidence related to things such as "photographs". 17. Mr Maxwell's cognitive impairment affects his ability to follow the course of the proceedings so as to understand what is going on in a general sense. His cognitive difficulties would be exacerbated by reason of the symptoms of his mental illness. Although he was not suffering from psychosis at the time of the proceedings before me, there is undoubtedly a history of psychosis, the symptoms of which can be triggered or exacerbated by stress. 18. The combination of impaired executive functioning, memory problems, difficulty shifting his focus of attention from one thing to another, together with his mental health impairment, impair his capacity to follow the proceedings and understand what is going on in a general sense. It also impairs his ability to understand the substantial effect of the evidence against him. 19. I will address ss 36(1)(g)–(i) of the Act together as there is a great deal of overlap. I am satisfied that Mr Maxwell's capacity to make a defence, instruct his legal representatives so as to mount a defence and provide his account of the facts, and decide what defence he will rely upon, is impaired by reason of his mental health and cognitive impairments. 20. Although the material reveals that Mr Maxwell has given a consistent, albeit rudimentary, account as to his knowledge and participation, his difficulties in following the course of the proceedings and understanding the substantial effect of any evidence given against him, will, in my view, necessarily impede his capacity to make a defence and make that decision known to his legal representatives. It will also impede his capacity to instruct his legal representatives and, importantly, provide his version of the facts to the Court if necessary. 21. In concluding that Mr Maxwell is unfit to be tried, I have not taken into account any suggestion that he suffers from deafness. The evidence does not satisfy me that he has a hearing impairment. Will Mr Maxwell Likely Become Fit During a Period of 12 Months? 1. Section 47 relevantly provides: 47 Finding after inquiry that defendant is unfit to be tried (1) If a defendant is found unfit to be tried for an offence following an inquiry, the court must also determine whether, on the balance of probabilities, during the period of 12 months after the finding of unfitness, the defendant— (a) may become fit to be tried for the offence, or (b) will not become fit to be tried for the offence. (2) The court may do one or more of the following after a finding that a defendant is unfit to be tried for an offence— (a) make an order discharging a jury constituted for the purpose of the proceedings, (b) adjourn the proceedings, (c) grant the defendant bail in accordance with the Bail Act 2013, (d) make an order remanding the defendant in custody, (e) make other orders that the court thinks appropriate. 1. Dr Ellis and Dr Lennings agree that the accused will likely remain unfit over the ensuing 12 months. In light of his cognitive impairment, that finding is unsurprising. 2. Dr Ellis was of the opinion that the accused did not meet the elements of the test for fitness under the Act and is unfit to be tried. The accused's performance at his review appeared similar to the observations of Dr Lennings in 2022, when he was taking his antipsychotic medication. The effect of any psychotic symptoms at this point, was found by Dr Ellis to be minimal, and the majority of his deficits related to his cognitive impairment. If the accused remains off his medication, Dr Ellis opines that he might deteriorate further, and his cognitive deficits are unlikely to change within 12 months. Dr Ellis suggested that a more fulsome clinical review might identify some areas for improvement however, on balance, he is not likely to achieve positive change within this timeframe. Dr Lennings agrees that it is unlikely that Mr Maxwell will improve over 12 months. 3. Accordingly, I make the following findings and orders. 4. The Court finds that: 1. In accordance with the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the accused, James Maxwell, is unfit to be tried on the offence the subject of the indictment filed against him in this Court. 2. Pursuant to s 47(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), on the balance of probabilities, the accused will not become fit to be tried for the offence during the period of 12 months after this finding of unfitness. 1. The Court orders that: 1. The accused be remanded in custody; and 2. Pursuant to s 53(2) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the proceedings are listed for mention on 20 October 2023, so that the Court obtains advice from the Director of Public Prosecutions as to whether or not further proceedings will be taken by the Director in respect of the offence. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 December 2023