New South Wales Court of Criminal Appeal CITATION: ROBINSON, Clifford Mark v R [2008] NSWCCA 64 HEARING DATE(S): 25 February 2008 JUDGMENT DATE: 26 June 2008 JUDGMENT OF: Spigelman CJ at 1; Hulme J at 2; Latham J at 57 DECISION: 1. Appeal allowed. 2. Conviction quashed and new trial ordered CATCHWORDS: CONVICTION APPEAL - whether appellant unfit for trial - issue not raised at trial - possibility of unfitness cannot be excluded. LEGISLATION CITED: Mental Health (Criminal Proceedings) Act 1990 Eastman v The Queen (2000) 203 CLR 1 R v R.T.I. (2003) 58 NSWLR 438 ; [2003] NSWCCA 283 R v Rivkin (2004) 59 NSWLR 284 R v Henley [2005] NSWCCA 126 CASES CITED : Kirkwood v R [2006] NSWCCA 181 Kesavarajah v The Queen (1994) 181 CLR 230 R v Mailes (2001) 53 NSWLR 251 ; (2001) 126 A Crim R 20; [2001] NSWCCA 155 R v Presser (1958) VR 45 Dyers v R (2002) 210 CLR 285 Jones v Dunkel (1959) 101 CLR 298 PARTIES: Clifford Mark Robinson - (Appellant) Regina - (Respondent) FILE NUMBER(S): CCA 2007/00003062 COUNSEL: J Doris - (Appellant) PG Ingram - (Respondent) SOLICITORS: NJ O'Connor & Associates - (Appellant) Solicitor for Public Prosecutions - (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/21/1099; 06/21/1103 LOWER COURT JUDICIAL OFFICER: Tupman DCJ LOWER COURT DATE OF DECISION: 21 December 2006 IN THE COURT OF CRIMINAL APPEAL 2007/00003062 SPIGELMAN CJ HULME J LATHAM J 26 JUNE 2008 CLIFFORD MARK ROBINSON v REGINA Judgment 1 SPIGELMAN CJ : I agree with Latham J. 2 HULME J: In this matter I have had the advantage of reading in draft the reasons for judgment of Latham J. So far as possible consistent with making these reasons understandable I shall avoid repetition. 3 In addition to the expert evidence of Dr Rowe and Dr Nielssen, there are other factors or matters of evidence that seem to me significant. They include that the Appellant completed the Higher School Certificate with a score of 49 (out of 100), that he has held a driver's licence and has a significant employment history. The nature of his work would seem to have been relatively unskilled. It included driving a bobcat and other machinery and labouring for an ashphalt company at a remuneration, according to what the Appellant told police during a recorded interview of "over 1,000", presumably dollars per week. For reasons which do not reflect adversely on the Appellant he left that employment some 2 weeks prior to his arrest. After his arrest he worked within the hospitality industry for 12 months, apparently as a barman, and then for about 7 months prior to January 2007 as a labourer for a building and fire-proofing company. It is to be inferred from the descriptions of them contained in the documents that evidence their existence that these jobs were on the open labour market. 4 Also relevant are the terms of two intercepted telephone conversations in which the Appellant participated. The terms of one which occurred on 7 June 2005 were:- Appellant: Hello. Doddsy: Hey Cliff. Appellant: Yeah. Doddsy: When you drive, when you drive down to the bottom of the street… Appellant: Yeah. Doddsy: Right? You know, just, you know at the stop sign? Appellant: Yeah. Doddsy: Yeah, the ute's parked on the right. Appellant: Yeah? Doddsy: Yeah. Go for a walk down there and have a look. Appellant: Alright. I'll go down there. I'll drive in a while. Doddsy: What? Appellant: I'll go in a sec. I mean I'm just gunna drive there, man. I'm not walkin' anywhere. Doddsy: Yeah, but don't let him follow you home. Appellant: Yeah. Doddsy: I'm serious. Appellant: Yeah. I'll watch him. I'll fuckin' – sweet, alright? Doddsy: Yeah. Appellant: Well, well… Doddsy: Don't let him follow you home. Hey, Cliff, 'cause every time you leave home they'll be, they're gunna, they're gunna follow ya. Appellant: Yeah. I think they already know, mate. Fuck. (Giggles). Doddsy Yeah, but I'm just saying, just in case they don't know: just in case they just like spotted ya and they haven't really jerried on. Appellant: Fuckin' copped me, eh. First thing they're gunna do, you know, they… Doddsy: What? Talk up, man. Appellant: The first, you know what the first thing they do, mate. They just take the rego that's it. (Giggles) It's all given up. "Giggles) You know. Fuck. Doddsy: Alright, alright, alright. I'll ring you – come and pick me up in the morning, right. Appellant: Yes. Doddsy: Alright, bye. Appellant: Yeah, if you, yeah, if he says yeah, sweet. Doddsy: Alright, bye. (Call concluded). 5 The terms of the second, which occurred on 30 June 2005 were:- "Appellant: Hello. Tuifua: Yeah. Appellant: Yo. Tuifua: What are youse doing? Appellant: Fuckin' trying to get matey with the thingo, but he fuckin' won't answer his door. Tuifua: What, the keys? Appellant: No, no, no, no, no, no. No. Other one, the one we come to the city for. You know? Tuifua: Yeah, yeah, your car keys. Appellant: No, no, no, no, no, no, no. Fuckin'… Tuifua: Oh. Appellant: The um, ear piece, you know? Tuifua: Oh yeah, yeah.. Appellant: Yeah, but he fuckin' won't answer me and so we're running around and shit fuckin' trying to get – ring and get his number and all this bullshit. Tuifua: Mm… Appellant: And – matey's saying ancelay and this and that. You want, you want to talk to him? Tuifua: No, no, we'll just – I'll be here waiting man. Appellant: Yeah. Tuifua: I'll call youse back hey? Appellant: Alright, sweet. Call me back in five. (Call concluded). 6 There was evidence from one of the investigating police officers that sometimes the group of persons alleged to be conspirators used Pig Latin – a method of expression where, inter alia, the first sound in a normally expressed word was omitted and a sound like "ay" added to the end. On this basis "ancelay" meant "cancel". 7 The terms of the first of the conversations indicate that the Appellant was capable of appreciating police surveillance and that Doddsy was desirous of minimising the effectiveness of such surveillance. The terms of the second conversation demonstrate that the Appellant was being deliberately coy in what he said and reluctant to express himself clearly. Some of the intonation and pauses apparent when listening to the tape of that conversation confirm this conclusion. 8 The Appellant's recorded interview following his arrest extended for some 20 minutes. A consideration of the video recording of the interview, assisted by reference to the transcript of it, demonstrates that the Appellant well understood what he was being asked and was capable of discriminating in what questions he chose to answer. Certainly many of the questions were leading and many dealt with mundane matters such as a car number, addresses, employment and how the Appellant arranged payment for his mobile phone calls. However, the Appellant's answers also extended to details of a number of places where he worked and a three-line explanation in the circumstances in which he stopped work. Asked about a roll of film found in his car, he replied that it could be a roll that was in the car and, apparently sufficiently in possession of his faculties to joke, said that, "I don't think you planted it there". 9 Then, when the questioning turned to matters likely to be incriminating such as where he was at particular times and whether he knew named persons the Appellant, selectively, chose not to answer, giving responses such as saying he preferred to seek legal advice first, would rather not say anything, or "no comment". 10 There was also a video recording of the Appellant's participation in some forensic procedures and, more relevantly for present purposes, the explanation to the Appellant of a document referring to those procedures and the Appellant's rights in relation to them. I place no weight on statements by the Appellant to the effect that he understood what had been read to him but he went on to suggest or seek confirmation that the document was to the effect of an explanation given to him prior to the document being read, viz. that if he did not consent to the procedure, it would occur anyway. He also said that he understood the document "in layman's terms". 11 Aspects of the history taken by the professionals who interviewed the Appellant are also relevant. The Appellant's trial had concluded on 21 December 2006. Dr Nielssen interviewed the Appellant on 9 May 2007. He records that the Appellant "believed the evidence presented in the trial showed that he was only peripherally associated with the people who were found to have committed the offence" and that the Appellant reported he had become involved because of the resumption of a contact with a friend from school days. Dr Nielssen records:- "He said that his school friend found out the number of his mobile telephone and arranged for his other friends to ring on that number. He said that when they rang he handed over the telephone to his friend." 12 Although there were exceptions, this latter statement is borne out by a consideration of the transcript of the intercepted telephone calls. Furthermore, although the full transcript of the trial was not made available to this Court, summary information with which the Court was provided indicates that the Appellant's recorded belief as to the evidence suggesting but limited association is also accurate. 13 Both Dr Neilssen and a Peter Ashkar, a psychologist with Duffy Barry Robilliard who had interviewed the Appellant took a history from him covering such things as behaviour and events during his childhood and at school. Dr Nielssen covered some of this ground also with the Appellant's parents. Although these accounts differ appreciably in the extent of detail, there are no significant inconsistencies and enough appears to indicate that the Appellant had a reasonable memory of the matters covered. In his report, Mr Ashkar indeed observed of the Appellant that:- "(The Appellant) showed no signs of odd behaviour, perceptual disturbance or disorganised thought. … His thinking was rational. Episodic (autobiographical) memory appeared to be intact. He demonstrated good levels of attention and concentration and appeared to complete all administered tasks to the best of his ability." 14 Before I turn to the psychiatric and psychologists opinions, it should also be recorded that, despite the nature of the grounds relied on in the Appeal, no evidence was sought to be adduced from the Appellant or from the counsel who had represented him during the more than 20 days that the trial of the Appellant and his co-accused took, nor was there any explanation offered for this omission. 15 Mr Ashkar, whose report is dated 31 January 2007, some 6 weeks after the Appellant had been convicted, interviewed the Appellant to determine "(a) if at the time of the commission of the offence/s there were any psychiatric or psychological mitigating factors; and (b) treatment and prognosis". The interview took approximately 60 minutes with a further 60 minutes expended in psychometric assessment. Under the heading psychometric assessment Mr Ashkar records the administration of a number of tests. He records that in the Wechsler Abbreviated Scale of Intelligence test which he describes as a reliable measure of intelligence, the Appellant's ability fell into "the high end of the Average range, or better than 73% of the population". In a test for neuropsychological functioning the Appellant's performance fell within normal limits and provided "no evidence" of impaired executive functioning e.g. problems with initiation, impulsivity, mental tracking, monitoring or perseveration. 16 Two tests were administered in connection with the assessment of the Appellant's working memory. In one of those tests that, according to Mr Ashkar, is "considered to be a measure of attention and concentration" the Appellant's performance fell within the average range. In the second of the tests (considered to be a measure of attention, concentration and working memory, i.e. the ability to perform mental operations) and a test which is "sensitive to many dementing processes and to diffuse brain damage" the Appellant's performance fell within the low average range. 17 Personality testing suggested a tendency to minimise difficulties and present in a socially desirable fashion and a personality reflective of a strong need to be acknowledged and valued by others. There was, according to Mr Ashkar, "no evidence of clinical psychopathology or subclinical symptomatology. 18 In the course of summarising his conclusions, Mr Ashkar said:- "Cliff's intellectual functioning is both intact and age appropriate. Findings from the current assessment suggest the overall integrity of his braining functioning is intact and provide no evidence of impaired executive functioning. Attention and concentration skills also appear to be intact. While no formal assessment of his moral reasoning abilities was undertaken, findings from the current assessment suggests that he has the ability to discern between lawful and unlawful behaviours and to regulate his own behaviour." 19 Mr Ashkar was not asked to assess the Appellant's fitness to stand trial. 20 Before turning to the opinions on that topic from the experts who were asked for such an assessment it is appropriate to refer to some further remarks of Dr Nielssen. In his report of 7 June 2007, he recorded that the Appellant's parents reported that the Appellant had "some areas of superior skill, for example in computers and some manual activities… was able to persist with mundane tasks" but that "his main disabilities were in abstract areas, such as interpreting texts and in all forms of social setting." They said that (the Appellant) was "very literal and was unable to detect other people's ulterior motives and that he accepts what they say". The report proceeds:- "Mr Robinson said that his son did not appear distressed after his arrest and instead showed a bizarre interest in the police procedures. He said that he had not been perturbed by being pulled over by the police on several occasions after being charged and was instead very interested in the police activity." 21 Dr Nielssen also observed:- "(The Appellant) maintained attention for the duration of the interview but his attention waned when his parents joined the interview. His registration of information appeared to be affected by impaired concentration and his capacity to retrieve detailed information was also assessed to be below normal from the history he was able to provide. His intelligence was estimated to be around the bottom of the normal range from his vocabulary, general knowledge and his ability to describe the case. He seemed indifferent to the purpose of the interview and unconcerned by the outcome of his sentencing hearing. … It is clear from Mr Robinson's presentation during the interview, the findings on psychological testing and the corroboration information provided by his parents that he has an enduring disability affecting all aspects of social function. He has few friends, has never had a long term relationship and has considerable impairment in social judgment and in his capacity for abstract thinking. … Mr Robinson has many features of autism, including impairment in relationships and language development, but does not seem to have the core feature of a lack of interest in social contact. Rather, his disability has prevented him from making and maintaining friendships. … Notwithstanding Mr Robinson's awareness of the conspiracy, I believe his developmental disability would have affected his capacity to understand the legal and moral consequences of his actions." 22 In a report of 18 January 2008 Dr Nielssen opined that the Appellant did not have the defence of mental illness available to him "and his participation in the offence was not due to the effect of a defect of reason in the form of a delusional belief that deprived him of the knowledge that what he was doing was wrong. Dr Nielssen continued:- "However, it seemed that Mr Robinson's mental condition could be raised in mitigation, as it prevented him from fully appreciating the effect of his behaviour. His disorder has left him with significant impairment in his capacity for any form of abstract thinking, including moral reasoning. The effect of his disability could perhaps be best understood by the assessment that his verbal and intellectual skills were similar to that expected of a 10 year old child." 23 In a later report of 18 February 2008 Dr Nielssen said that the Appellant was able to give an account of the legal issues raised in his trial, referred to the Appellant having completed the higher school certificate with an average score, holding a driver's licence and being able to perform unskilled work and concluded that "on the balance of probabilities, he was fit for trial". 24 Latham J has set out verbatim the well-known passage from the judgment of Smith J in R v Presser (1958) VR 45 at 48 wherein the relevant criteria for fitness to be tried are set out. For present purposes, it is convenient to tabulate and number them. A person accused needs to be able- (i) To understand what it is that he is charged with; (ii) To plead to the charge; (iii) To exercise his right of challenge; (iv) To understand generally the nature of the proceedings, namely, that it is an enquiry as to whether he did what he is charged with; (v) To follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all of the various court formalities; (vi) To understand … the substantial effect of any evidence that may be given against him; (vii) To make his defence or answer to the charge. 25 Smith J expanded this final element by indicating it included giving any necessary instructions to counsel, deciding what defence to rely on and making an accused's defence and version of the facts known to counsel and the Court. 26 As passages quoted by Latham J from the evidence make clear, Dr Nielssen saw no significant possibility that the Appellant lacked the ability referred to in paragraphs (i), (ii), (iii), (iv), (vi), (vii), 27 Dr Nielssen added a qualification in the case of paragraph (iii), "with instruction as to his rights" but I do not regard that as significant. The Appellant had such advice available and most perople would need instruction in this area. 28 So far as paragraph (v) is concerned, Dr Nielssen's reservation was that the Appellant might not have been able to retain in detail what had been said over the 5 weeks and may have had difficulty with some aspect of the arguments. Such reservations do not demonstrate an inability in the respects specified in the paragraph I have numbered (v). Many persons not trained in the areas suffer to an appreciable degree from one or both of these deficiencies. 29 Dr Nielssen was again given the opportunity of stating any respect or respects in which he thought there was a significant possibility that the Appellant may not have been fit for trial and replied:- "Mainly in terms of the quality of instructions and how realistic the instructions were that he gave to counsel during the course of the trial would have been my main area of concern and whether he was participating in the trial in an adequate way, but I'm only inferring that from the nature of his disability without knowing how his instructions did proceed during the trial. They would really rely on, require to find out from his representative whether his instructions were adequate." (sic) 30 I shall comment on this passage below. 31 Dr Rowe administered to the Appellant a large number of tests. In his report of 25 January 2007, he recorded that during the testing, the Appellant appeared motivated and proceeded throughout without need for aid or intervention. Dr Rowe observed that when the Appellant was talking about the incident and his experience at the time of arrest and subsequently he was very matter of fact and did not appear distressed by the content or the possibility of spending up to 5 years in prison. 32 The test results were varied. Summarised, the effect of much of Dr Rowe's report is as follows. (For ease of later reference, I have added paragraph numbers to my quotations or summaries from Dr Rowe.) (i) On the spot the real word test, a good indicator of intellectual ability … the Appellant was found to score in the borderline range. (ii) During the verbal memory and learning test… (which) measures self monitoring functions, the ability to learn new auditory verbal information, and recall and recognise what is learnt across short and delayed time intervals the Appellant's performance was within normal limits on most measures. However, he displayed some specific weaknesses. The results suggest the Appellant has a good short term memory but displays a difficulty attending to and processing auditory information such that his performance reaches a ceiling very quickly and he fails to learn the information. This leads to low average verbal memory and learning abilities. The Appellant is displaying significant difficulties with information processing such that his immediate learning and recall performance is poor. However, after four trials of practise, albeit on a different word list, he is able to adjust to the stimuli and start to process the relevant details in a more functional manner leading to a relative improvement in his score, from the twenty-third percentile to the eighty-sixth percentile. (iii) On a test involving the pressing of squares on a screen in the order in which they previously lit up and which is directed to measuring visuospatial working memory, attention span and attention to detail the Appellant displayed significant difficulty scoring below the first percentile and equivalent to the average performance of persons 7 to 8 years old. (iv) In tests of sensorimotor function the Appellant did not display any significant deficits. (v) On a test entitled "Sustained Attention – Continuance Performance Task and Vigilance" the Appellant displayed perfect accuracy scoring in the eightieth and eighty-third percentile with a normal reaction time. On an "Auditory Oddball – Continuous Performance Task" test directed to measuring auditory sustained attention and vigilance and discrimination of relevant from irrelevant information, the Appellant performed within normal limits. On a third test involving the pressing of a button in response to sequences of red and green images, the Appellant's reaction time and omissions fell within the normal range but he displayed a significant number of false alarms scoring in the first percentile. Dr Rowe observed that:- (vi) "This pattern of performance reflects slowness in cognitive (mental) flexibility and the ability to register changes. This happens such that when the green press (go) sequence changes to the red press (stop) sequence Cliff is slow to identify and register the change, leading to a failure to stop and a high number of false alarms." 33 Under the heading "Executive Functioning (Complex Reasoning), Dr Rowe dealt with the Appellant's performance in 3 tests. The first involved sequential connection in chronological order of numbers and, then numbers and letters and, according to Dr Rowe, measures simple attention as well as more complicated switching of attention and mental flexibility, visual motor tracking and the ability to coordinate ongoing sensorimotor and cognitive mental activities. Dr Rowe's report continues:- (vii) "On part 1 of this test Cliff was significantly impaired on completion and average connection time scoring in the first and third percentile, respectively. On the more difficult part 2 of this test he scored below the first percentile on both duration measures. His error rate was normal on both parts. (viii) Cliff's performance on part 1 of the test is equivalent to the average performance seen in the 11 year old age bracket, but on the more difficult part 2 of the test his performance is equivalent to the average performance seen in the 9 year old age bracket. (ix) This indicates that Cliff has significant difficulty adjusting to the stimulus environment and keeping mental track of the sequence and switching between each letter-number set. It suggests an inability to conceptually connect relevant details while ignoring irrelevant details." 34 Dr Rowe then referred to a "Maze Executive Function test" wherein, via repetition and trial and error, a subject is required to discover a hidden path through a maze and remember it. Dr Rowe's report continues:- (x) "The test measures planning, abstraction, foresight, error correction, the ability to choose, try, reject and adapt alternative courses of thought and action, visuospacial learning and memory. (xi) Cliff displayed significant difficulty on the maze executive function test scoring in the first for trials completed and the second percentile for completion and learning time. He scored below the first percentile for errors. (xii) The number of trials which Cliff required to complete the task is equivalent to below the average performance of the 6 year old age group. His error rate is equivalent to the average performance of the 8.5 year old age group, and his completion and learning time is equivalent to the average performance of the 10 year old age bracket. (xiii) Overall Cliff's executive function or complex reasoning skills is equivalent to approximately that of an average 9 year old. He is able to proceed at a relatively fast rate resulting in a high number of trials, but he learns at the level of a 9 year old, leading to excess errors and a failure to monitor and learn by mistake. (xiv) These results suggest Cliff displays significant difficulty attending to relevant (essential) details and ignoring irrelevant (non essential) details. As a result he attends to both irrelevant and relevant information but does not process the relevant as being most important. This leads to an inability to learn and an inability to self monitor his errors and correct them." 35 Dr Rowe next referred to tests for speed and accuracy for selecting words and choosing colours over words, a test directed to measuring the ability to inhibit impulsive responses and said that the Appellant scored in the borderline to average range in the first part of these tests and in the borderline range in the second. In word generation and animal fluency tests the Appellant scored in the 7th percentile, a score that "suggests low verbal intellectual ability and a performance level equivalent to the average score of the 12 year old and 9 year old age bracket, respectively." In a test that involved choosing between a real word and a nonsense word, the Appellant's score was in the 3rd percentile, "once again reflecting low verbal intellectual abilities and an ability equivalent to the average score of the 10 year old age bracket." 36 Dr Rowe's conclusion based on these results was as follows:- (xv) "Cliff displays clinically significant deficits in specific cognitive domains, particularly relating to executive function, while displaying low average to high average abilities on more simple tests of memory and attention span. Cliff's areas of high functioning enable him to compensate and appear as a relative high functioning individual despite his severe underlying cognitive deficits. (xvi) His area of impairment is in his ability to successfully discriminate relevant from irrelevant information, with particular problems in attending to multiple aspects of stimuli and forming meaningful relationships. His inability to do this affectively during more difficult cognitive tasks leads to a slowness to see and conceptualise the solution. As a result he fails to successfully learn tasks and fails to learn by self-monitoring of errors. His inability to correctly register salient or important details leads to deficits in the ability to correctly detect novelty or important events or information and as a result he does not devote the correct or normal amount of attention to care. (xvii) Overall, his cognitive deficits suggest that his mental functioning in the area of executive function and complex reasoning is equivalent to that observed in the 6 to 11 year old age bracket." 37 Dr Rowe then performed a number of electroencephalogram tests. They indicated a number of abnormalities of brain function but it is sufficient for present purposes to quote from but 3 paragraphs:- (xviii) "Cliff's ERP abnormalities were more remarkable displaying significant latency and amplitude abnormalities, suggesting he suffers more from information processing and timing abnormalities rather than a cortical arousal or activation type disturbance. (xix) When processing relevant target, stimuli Cliff's N1, N2 and P3 latency was identified as being significantly delayed. This suggests significant abnormalities in early attention and stimulus evaluation processes and late contextual evaluation processes that are associated with cerebral pathology… (xx) In addition, Cliff was found to show an abnormal decrease in P3 amplitude to relevant stimuli but an increase in N1, P150 and P2 amplitude to background stimuli. This pattern of results suggests that Cliff displays significant difficulties with selective attention such that the early attentional and stimulus evaluation processes in his brain over attend to irrelevant stimuli leading to an inability to properly discriminate relevant from irrelevant details. Note that these processes occur between 100 and 250 ms before conscious awareness." 38 Dr Rowe's "Summary and Opinion" includes the following:- (xxi) "Cliff appears to present with the above profile of high-functioning autism. (xxii) … On the current testing, Cliff has been objectively identified as presenting with borderline language difficulties with an ability equivalent to the average performance of the 10 year old age bracket… (xxiii) … Cliff appears to show a lack of awareness and lack of normal emotional response with respect to the significance and severity of his current legal predicament… His lack of awareness or emotional response appears consistent with an absence of theory of mind and autistic disorder. His cognitive deficits lead to an inability to fully understand and comprehend the reality of his situation and disorder. (xxiv) Cliff's most pertinent mental (cognitive) difficulty relates to clinically significant deficits in complex reasoning and attention that is consistent with that identified in autistic disorder including high functioning autism. His areas of cognitive deficit reflect the average ability measured objectively in children in the 6 to 11 year old age bracket, and overall his executive function or complex reasoning skills are equivalent to that of a 9 year old. His percentile position in his own age bracket ranges from below the 1st percentile to the 2nd percentile which equate to measures of severe cognitive impairment. … (xxv) Cliff's cognitive deficits mean that he is unable to successfully discriminate essential (relevant) from non essential (irrelevant) details. His attempts to do so are met with significant interference and an inability to conceptually learn and integrate information from his environment. In complex situations, he will be able to obtain the gist, but he will not be able to apply the relevant amount of attention to important details. Thereby, overlooking important features or details of a situation, which can ultimately lead to errors. These he will over look due to a failure to notice and as a result not direct the appropriate level of attention or details to important events or issues." 39 Under the heading "Conclusion", Dr Rowe observed:- (xxvi) "Using objective neurophysiological (brain function) and neuropsychological (cognitive) testing we have identified that Cliff displays a cluster of neurological abnormalities are consistent with high functioning autism and the complex reasoning skills of an average 9 year old and verbal intellectual skills of an average 10 year old. Up until now, this condition has been undiagnosed and untreated. (sic) (xxvii) The cognitive and social abnormalities that are associated with Cliff's medical condition can account for his inability to identify the illegality and severity of the criminal associations which he formed and the alleged activities which he became involved in. Because of his significant cognitive (thinking and conceptual) deficits he would not have been able to comprehend the severity of the situation or the relevance of important incidents and his involvement. As a result he would not have comprehended the need to act accordingly in a socially and legally appropriate manner. … (xxviii) In addition Cliff's medical condition as objectively identified in this report would have negatively impacted on his intellectual and decision making abilities in the events leading up to and during the conspiracy his ability to access proper counsel, and the jury's decision." 40 Dr Rowe dealt with the R v Presser test in a report of 21 February 2008. He said:- (xxix) The extent of Clifford's cognitive impairment also indicated to me that he did not possess the required knowledge to understand the course of proceedings so as to understand what is going on in court in a general sense. He also would not have fully understood the nature of a charge or evidence given against him or to be able to properly answer to such charges or decide upon an appropriate defence. Nor would he have the capacity to sensibly recall relevant facts and therefore accept or deny or explain them. 41 I have set out Dr Rowe's remarks at some length because it is important in assessing the weight to be given to his ultimate conclusions to consider what I may call his more primary findings and the basis of them and to compare these against the other, some of it objective, evidence. Undoubtedly, taken at face value Dr Rowe's remarks provide the Appellant with a deal of support for the conclusion that he was unfit to be tried and, even more strongly, for the conclusion that this Court cannot find that the court below, acting reasonably, must have found the Appellant fit to stand trial – See Eastman v R (2000) 203 CLR 1; R v RTI (2003) 58 NSWLR 438 and the other cased cited by Latham J. However, at least many of the doctor's theoretical deductions seem to me to fly in the face of the other evidence and particularly the objective evidence, referred to above. Furthermore, conclusions flowing from some tests appear to be inconsistent with others. 42 Although in the paragraph I have numbered (ii) Dr Rowe expressed the view that the Appellant's immediate learning and recall performance was poor, his conclusion in paragraph (xv), prior to the electroencephalogram tests, was that the Appellant displayed low average to high average abilities on more simple tests of memory and attention span. Furthermore, while Dr Rowe concluded in paragraph (iii) that the Appellant displayed difficulty with his visuospatial working memory, attention span and attention to detail, the doctor's assessment in paragraph (v) of the Appellant's auditory aspect of these matters was that it was within normal limits. Court proceedings obviously require far more of the latter abilities than those needed to press squares of a screen. 43 In any event, the fact of the Appellant being able to remember to a reasonable degree is demonstrated by his memory of childhood, his account to Dr Nielssen of the trial, his attaining 49 in his HSC, and the fact that he was clearly able to maintain some of the employment to which reference has been made. He clearly remembered enough of instructions, advice or the consequences of what he was engaged in to limit what he said in the second of the phone calls set out above. He registered, remembered and recalled a deal of the explanation of his rights concerning the forensic procedure and could apply compare this with what he was told when his rights were read out to him. 44 Another suggestion of weakness was "an inability to conceptually connect relevant details while ignoring irrelevant details" (paragraphs (ix) and (xiv). Indeed the terms of paragraph (xvi) suggest that this was, in Dr Rowe's opinion, the Appellant's major weakness. See also paragraph (xxv). Dr Rowe does then go on to talk of the Appellant having deficits in executive function or complex reasoning – see paragraphs (xiii), (xv), (xvi), (xxiv) – but the foundation of this seems to lie to a significant degree in this inability to discriminate between the relevant and irrelevant. Of course, I do not suggest that the memory deficits to which I have referred and slowness in cognitive flexibility – see paragraph (vi) – are not also relevant in this regard. 45 However, that the Appellant is able to exercise a not insignificant degree of discrimination between the relevant and irrelevant, or important and unimportant is apparent from the second of the phone calls quoted and from his ERISP. It is impossible to reconcile the Appellant's conduct in these matters, and I think also his HSC score and employment, with Dr Rowe's conclusion in paragraph (xxv) that the Appellant "is unable to successfully discriminate essential (relevant) from nonessential (irrelevant) details". 46 It is not my intention to cast doubt on the general applicability of tests of the nature administered by Dr Rowe although I confess to wondering at whether some allowance should have been made for what I would infer to be the fact, viz. that the Appellant, given his deficits, may well have had no experience, even as a child playing games, with reacting to coloured lights, mazes etc. Be that as it may however, the extent of the inconsistency between matters objectively established and Dr Rowe's deductions from the sort of tests he administered leads me to the view that, acting reasonably, no court could accept Dr Rowe's conclusions as to the Appellant's fitness for trial. 47 In that connection, and in relation to Dr Nielssen's reply to which I said I would return, it is also relevant to bear in mind the limited nature of the issues liable to arise in the Appellant's trial and to which instructions were relevant. Essentially, they involved what the Appellant did, what others did and his knowledge of that, and of what was said on occasions when he was present. These are not matters involving "complex reasoning" or "abstract thinking". Apart from the subject offence, the Appellant is, according to what his parents told Dr Neilssen, "a cleanskin", a fact that, given he was born in July 1983, indicates that he must have a reasonable understanding of right and wrong, and that one does not commit armed robbery. 48 That the second ground of appeal should be rejected is put beyond doubt in my mind by the complete absence of any evidence as to what the Appellant's instructions were or that his counsel had any difficulty in this regard. A Jones v Dunkel (1959) 101 CLR 298 argument is not available against an accused at a trial – see Dyers v R (2002) 210 CLR 285. However, the reasons for that approach have no application to an appeal raising the sort of issues that arise here, and I would hesitate long before reaching a conclusion that an appeal to this Court upon the ground that an Appellant (presumably sufficiently competent to instigate an appeal) was not fit to be tried should succeed because some evidence that the Appellant was unfit at the time of his trial is adduced when neither of the persons best able to give evidence as to capacity at that time, viz. the Appellant and the counsel who appeared for him, is called and no explanation is offered for their absence. 49 This conclusion means that I must address the first ground of appeal, viz. that "The Appellant's trial miscarried because he was deprived of the availability of a special verdict within the meaning of s38 of the Mental Health ((Criminal Proceedings) Act 1990". 50 As Latham J has pointed out, after oral evidence was given by Dr Rowe and Dr Neilssen, counsel for the Appellant effectively abandoned reliance on this ground. 51 In fact none of the medical reports tendered contained statements to the effect that at the time of the offence charged the Appellant was unable to appreciate the nature and quality of his actions or to understand that those actions were morally wrong. Dr Neilssen, whose report of 7 March 2007 went the furtherest on this issue there said that "Notwithstanding Mr Robinson's awareness of the conspiracy, I believe his developmental disability would have affected his capacity to understand the legal and moral consequences of his actions." In Dr Neilssen's report of 18 January 2008, while opining that the Appellant did not have a mental illness defence available, he said that the Appellant's mental condition "prevented him from fully appreciating the effect of his behaviour". 52 Mr Ashkar's report that I have quoted clearly argues against the possibility of any mental illness defence. 53 The topics were taken up with Dr Rowe and Dr Neilssen in the witness box. There, in answer to a question from the Crown Prosecutor, "Your opinion is that Mr Robinson suffers from a mental illness such that he's either unaware of the nature and quality of his actions and/or that they were morally wrong when he participated in the conspiracy, is that so?" Dr Rowe said he thought that was what he had said. In fact he had not, most of his previous answers on the topic of whether the Appellant knew what he was doing was morally wrong being to the effect that, if the Appellant had been asked whether stealing or robbing a bank was morally wrong, the Appellant would have said "yes" albeit the doctor added that in his view the Appellant did not appreciate the significance of what he was engaged in. 54 Dr Neilssen amplified his earlier expressed view by opining that the Appellant had a significant partial impairment of his ability to understand the moral consequences of this actions. 55 Although none of this evidence was present during the Appellant's trial, given its nature and the fact that some of it came from each side of the case, this Court should receive it. However, it suffers from the deficiency that none of it effectively addresses the actions of the Appellant to which I have referred early in these reasons. There was some attempt during cross–examination of Dr Rowe to take him to part of this material but he seemed constitutionally incapable of simply answering a question and in the result still did not address those actions. In the result, I am not persuaded that the evidence is strong enough to justify allowing this ground of appeal. 56 I would grant leave to appeal, but dismiss the appeal. 57 LATHAM J : The appellant appeals against his conviction after trial on a charge of Conspiracy to Commit Armed Robbery. The appellant was tried jointly with two co-offenders, the trial occupying over 20 hearing days. Despite the fact that the appellant was found guilty by the jury on 21 December 2006, his sentencing proceedings were adjourned a number of times throughout the first half of 2007, to allow for the preparation of reports touching upon the appellant's autism disorder. 58 Ultimately, on 14 June 2007, the Crown and the appellant's legal representatives jointly applied for, and were granted, a further indefinite adjournment, on the basis that the reports to hand, which explored the appellant's condition, raised the prospect of a successful conviction appeal. The focus of those reports was the impact of the appellant's significant cognitive deficits upon his capacity to appreciate the consequences of his actions at the time of the offence. 59 On 16 November 2007, the appellant filed a single ground of appeal, namely :- i) the appellant's trial miscarried because he was deprived of the availability of a special verdict within the meaning of s 38 of the Mental Health (Criminal Procedure) Act 1990 (the Act). 60 On 19 February 2008 (less than a week before the hearing of the appeal), amended grounds were filed. A further ground was added, namely, :- ii) the appellant was unfit to be tried within the meaning of Part 2 of the Act. 61 As at the date of filing the amended grounds, the appellant's representatives were not in possession of any material going to the question of the appellant's unfitness to be tried. It had been foreshadowed to the Crown on 18 February that the issue would be raised. However, the appellant's representatives did not formally seek a report from their expert on the issue until 19 February and the report itself was not provided until 21 February. The report was filed in support of the additional ground on 22 February, the Friday before the hearing of the appeal on Monday 25 February 2008. 62 Similarly, the Crown's expert witness was confronted with the issue of fitness to be tried for the first time on 18 February and responded in brief terms the following day. At the hearing of the appeal, it was necessary to adjourn for a short period to allow the Crown's expert to further consider the most recent report of the appellant's expert and to confer briefly with him. 63 I refer to this chronology, not by way of criticism of the conduct of the appeal, but because it created real difficulties for the Court in the application of the relevant test for determining whether there was a possible miscarriage of justice in the instant case. In short, before it could dismiss the appeal, the Court was required to reach the affirmative view that, had the question of fitness been raised at trial, the court below, acting reasonably, must have found the appellant fit to stand trial : Eastman v The Queen (2000) 203 CLR 1 ; R v R.T.I. (2003) 58 NSWLR 438 ; [2003] NSWCCA 283 ; R v Rivkin (2004) 59 NSWLR 284 at 296; R v Henley [2005] NSWCCA 126 ; Kirkwood v R [2006] NSWCCA 181. For my part, any satisfaction on that score was rendered problematic by conflicting expert reports that had been prepared in haste and, necessarily without the benefit of applying the Presser criteria in the course of an interview with the appellant (see R v Presser (1958) VR 45 at 48). 64 Be that as it may, in the absence of any adjournment application, the questions raised by the appeal stood to be determined on the material before us. At the end of the hearing of the appeal, after evidence had been given by both the appellant's expert and the Crown's expert, the appellant's counsel effectively abandoned the submission that the appellant was relevantly mentally ill at the time of the offence. Whilst that concession may not dispose of the first ground, counsel recognised that were the appeal to succeed on the second ground, there would be no need to consider the first ground. Accordingly, I turn to a consideration of the second ground. Fitness to be Tried 65 It is convenient to be reminded of the statement of Smith J in Presser that encapsulates the criteria for fitness to be tried :- It is whether the accused because of mental defect fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him. He needs…to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceedings, namely that it is an inquiry as to whether he did what he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all of the various court formality. He needs to be able to understand…the substantial effect of any evidence that may be given against him; he needs to be able to make his defence or answer the charge. Where he has Counsel he needs to be able to do this through his Counsel by giving any necessary instructions and by letting his Counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence but he must…have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his Counsel, if any. 66 This test must also be administered in the context of the length and complexity of the trial proceedings : Kesavarajah v The Queen (1994) 181 CLR 230. The question of unfitness is not confined to cases where a diagnosis of mental illness has been made. Rather, the common law has always recognised that "mental illness" for these purposes can extend to developmental disability : R v Mailes (2001) 53 NSWLR 251 ; (2001) 126 A Crim R 20 ; [2001] NSWCCA 155. The Appellant's Condition – High Functioning Autism. 67 The appellant was examined by Dr Donald Rowe on 11 January 2007. Dr Rowe is a clinical neurophysiologist and consulting clinical psychologist. His expertise lies in clinical neurophysiology, neuropsychology, psychology and psychological medicine. The appellant was subjected to a battery of tests, which disclosed a number of specific deficits. Whilst the appellant was capable of presenting as a relatively high functioning individual, there were severe underlying cognitive deficits. The cognitive findings indicated that the appellant "displayed significant difficulties with information processing such that his immediate learning and recall performance is poor". The appellant also displayed "significant difficulty adjusting to the stimulus environment [suggesting] an inability to conceptually connect relevant details while ignoring irrelevant details". 68 The appellant's executive function and complex reasoning skills were assessed at approximately that of an average nine year old. In the opinion of Dr Rowe, the appellant's cognitive deficits "particularly related to executive function, attentional abnormalities and deficits in spatial working memory and response inhibition". These impairments are consistent with high functioning autism. The appellant's neurophysiological abnormalities give rise to an inability "to attend to relevant details, leading to errors in conceptual judgement and an inability to attend to and respond to important details and information". 69 The opinion set out above was contained in Dr Rowe's report of 25 January 2007. Over one year later, Dr Rowe was asked to provide an opinion on whether the appellant was fit for trial according to the Presser test. It is apparent both from the contents of Dr Rowe's report of 21 February 2008, and from his cross-examination in the course of the hearing of the appeal, that Dr Rowe was not familiar with the Presser test and had relatively little experience in providing an expert opinion on that issue. 70 The substance of Dr Rowe's opinion was :- The extent of [the appellant's] cognitive impairment .. indicated to me that he did not possess the required knowledge to understand the course of proceedings, so as to understand what is going on in court in a general sense. He also would not have fully understood the nature of a charge or evidence given against him or be able to properly answer to such charges or decide upon an appropriate defence. Nor would he have the capacity to sensibly recall relevant facts and therefore accept or deny or explain them. 71 That opinion was supplemented by Dr Rowe's evidence. In his view, the complexities of legal proceedings are beyond the conceptual intellect of the appellant, largely on the basis that a person with an intellect equivalent to a child between the ages of 6 and 10 years would not be fit to follow the course of the proceedings. However, Dr Rowe acknowledged that the appellant would have understood a simple communication relating to the function of the judge in the course of a criminal trial, the function of the jury and the role of counsel, although not to "a sufficient level". Significantly, Dr Rowe was only made aware of the Presser test one week before the hearing of the appeal and, accordingly, had not had the opportunity to question the appellant on his understanding of the role of the judge or jury, or his understanding of the court proceedings and whether he was able to follow what had gone on. 72 Dr Olav Nielssen, a forensic psychiatrist of considerable experience, prepared a report on 7 June 2007 in response to the reports prepared on behalf of the appellant for sentencing purposes. Dr Nielssen's opinion was that the appellant had a developmental disability of an enduring nature which affected all aspects of his social function. Dr Nielssen concurred with the opinion of the appellant's treating paediatrician that the appellant's capacity for abstract thinking was compromised. In conclusion, Dr Nielssen stated that the appellant's "developmental disability would have affected his capacity to understand the legal and moral consequences of his actions." 73 The Crown sought clarification of that closing statement and received a further letter of 18 January 2008 from Dr Nielssen, stating, inter alia, that the appellant's "disorder has left him with significant impairment in his capacity for any form of abstract thinking, including moral reasoning. The effect of his disability could perhaps be best understood by the assessment that his verbal and intellectual skills were similar to that expected of a 10 year old child." 74 In a further letter of 18 February 2008, Dr Nielssen confirmed that he did not specifically take the appellant to the Presser criteria, but he was not of the view that the appellant would have been unfit for trial. Dr Nielssen relied upon the fact that the appellant was able to give an account of the legal issues raised in his trial, the fact that he completed the Higher School Certificate with an average score, the fact that he held a driver's licence and was able to perform unskilled work. However, the opinion expressed in that letter was amplified in the course of Dr Nielssen's cross-examination on the hearing of the appeal. 75 Dr Nielssen considered whether there was a significant risk that the appellant was not fit for trial. In particular, Dr Nielssen gave evidence that :- A : [the appellant has] a pervasive developmental disability and he did face complex proceedings being a long trial in company of other people where he would be required to give ongoing instructions, … so my conclusion was based on his description of the defence (sic), the account he gave to his solicitors, to his legal representative, and just a comparison of his overall level of performance to other people who have far greater disability. Q : Did you formed the view that there was a significant risk that he had not been fit for trial? A : I definitely considered that he may not have been. Q : 1% possibility that he may not ? A : Again, it's hard to say in a scale but balance of probabilities being 51% perhaps, I felt quite strongly on the side that he was fit. …………………………………………………………………. Q : Do you see any significant possibility he couldn't understand what he was charged with? A : No your Honour. Q : Do you see any significant possibility he was not able to plead to that charge? A : No your Honour. Q : Do you see any possibility that he was incapable of exercising a right of challenge? A : With instruction as to his rights I think he could have exercised a right of challenge. Q : Do you see any significant possibility that he couldn't understand generally the nature of the proceedings, namely that it's an enquiry as to whether he did what he was charged with? A : No I think he had a general understanding of the nature of the proceedings. Q.: Do you see any significant possibility that he couldn't follow the course of the proceedings so as to understand what's going on? A : There is a possibility that he would have not understood everything in the trial. There is that possibility . Q.: When you say everything what sort of things? He would have understood witnesses were being called? A : Yes. Q.: He would have understood they were giving evidence as to what they knew or had heard, what went on? A. : Yes. Q :. What sort of things might he not have understood? A : Perhaps in terms of being able to retain in detail what had been said over the five weeks and some aspects of the arguments he may have had difficulty. Q :. Is there any significant possibility he could not understand the substantial effect of the evidence as it was given? A : I think he could have understood the substantial effect. Q : Was there any significant possibility he was not able to decide on or make his defence or response to the charge brought against him? A : No, I thought he was able to make an understandable defence based on his summary to me. Q : Was there any significant possibility he was not able to give his counsel his version of what occurred? A : Again, it seemed that he was able to, although I really have to rely on the counsel to say whether or not his instructions were adequate. Q : I thought you indicated earlier you thought there was a significant possibility he was not fit for trial, am I misquoting you? A : It's certainly a live issue in the sense that he does have a disability that affects abstract thinking which is important . But according to the Presser criteria, although I didn't specifically asked him about all his detailed knowledge, I thought that he was probably fit. Q : If you can, would you tell me in what respect or respects do you think there is a significant possibility he may not have been fit? A : Mainly in terms of the quality of instructions and how realistic the instructions were that he gave to counsel during the course of the trial would have been my main area of concern and whether he was participating in the trial in an adequate way, but I'm only inferring that from the nature of his disability without knowing how his instructions did proceed during the trial. They would really rely on, require to find out from his representative whether his instructions were adequate. The Possibility of Unfitness 76 The emphasised passages in the evidence set out above establish that Dr Nielssen entertained some doubt in relation to the appellant's fitness for trial, a doubt that may have been resolved by information from the appellant's representative at trial. Neither Dr Nielssen nor this Court have access to that information. Whilst that is an unsatisfactory feature of the appeal, it does not entitle this Court to draw the inference that there was no inadequacy in the appellant's instructions. 77 Moreover, the Court was informed that the appellant was given direct access to counsel and that no instructing solicitor was made available to counsel in the course of the trial. The demands on counsel may well have resulted in less than optimal communication with the appellant throughout the trial, and the appellant's capacity to appear to function relatively normally, despite his cognitive deficits, may have obscured real gaps in the appellant's understanding of the proceedings. 78 Dr Rowe remained unshaken in his view that the appellant was unfit. I acknowledge that his evidence on this issue carried less weight than Dr Nielssen's, yet at the end of the day, the Court was left with one firm opinion and another recognising the possibility of unfitness. 79 Accordingly, I am not persuaded that a reasonable tribunal must have found the appellant fit, were the matter to be canvassed in full. I am far from persuaded that the appellant was unfit for trial in late 2006, but that is not the test. There remains the possibility that a tribunal, acting reasonably, could have taken a different view. 80 Ground 2 of the appeal has been made out. It is therefore unnecessary to consider Ground 1. 81 The orders I propose are :- 1. Appeal allowed. 2. Conviction quashed and new trial ordered. ********** 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.