Supreme Court New South Wales Medium Neutral Citation: R v Watt [2012] NSWSC 1574 Hearing dates: 3 December 2012 4 December 2012 12 December 2012 Decision date: 12 December 2012 Jurisdiction: Common Law Before: Price J Decision: Accused unfit to be tried. Matter referred to the Mental Health Review Tribunal Catchwords: CRIMINAL LAW - procedure - fitness to plead - conspiracy to import large commercial quantity of prohibited drugs - cognitive impairment - unfit to be tried. Legislation Cited: Crimes Act 1914 (Cth) (Cth) Div 6, s 20A(2)(a)-(c), s 20B(3), s 20BA(2), 20BA(4) Criminal Code (Cth) s 11.5(1), s 307.11(1) Drug Misuse and Trafficking Act 1985 (NSW) s 25(2), s 27 Mental Health (Forensic Provisions) Act 1990 (NSW) s 6, s 12, s 14, s 14(b)(iii) Cases Cited: Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230 Ngatayi v The Queen (1980) 147 CLR 1 R v Presser [1958] VR 45 Category: Principal judgment Parties: Commonwealth Director of Public Prosecutions Adam Keith Watt Representation: Counsel: Mr I McLachlan and Ms S Beckett (Crown) Mr G. Brady (Defendant) File Number(s): 2008/207615 2009/30824 Judgment 1HIS HONOUR: Adam Keith Watt, the accused, is charged with conspiracy to import approximately 210 kilograms of the precursor pseudoephedrine into Australia. The charge of conspiracy is founded on subsections 307.11(1) and 11.5(1) of the Criminal Code (Cth). He is also charged with aiding and abetting the supply of pseudoephedrine, being not less than the large commercial quantity applicable to that prohibited drug, contrary to sections 25(2) and 27 of the Drug Misuse and Trafficking Act 1985 (NSW). His trial is listed with Radoslav Spadina his co-accused to commence in the Supreme Court on 4 March 2013. 2The issues in the trial are complex. It is the Crown case that the accused and Mr Spadina were part of a conspiracy with members of a Dutch based drug syndicate, and were the joint principals of the Australian end of the plan to import pseudoephedrine into Australia from the Democratic Republic of Congo. The trial has an estimate of five months and will involve much detail concerning events that are alleged to have occurred between 2006 to 2008 and a great deal of intercepted telephone SMS, email and surveillance material. 3A question of the accused's fitness to be tried has been raised. 4The principles that apply in determining an accused's fitness to stand trial for Federal and State offences are well-settled. They are stated in R v Presser [1958] VR 45 by Smith J at [48]: [An accused] needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any. 5Presser has been approved by the High Court in Ngatayi v The Queen (1980) 147 CLR 1 and Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230. The length of the trial is also a relevant factor. In Kesavarajah the plurality (Mason CJ, Toohey J and Gaudron J) observed at p 246: "In the context of a trial, fitness to be tried is to be determined by reference to the factors mentioned by Smith J. in Presser and by reference to the length of the trial. It makes no sense to determine the question of fitness to be tried by reference to the accused's condition immediately prior to the commencement of the trial without having regard to what the accused's condition will or is likely to be during the course of the trial. There is simply no point in embarking on a lengthy trial with all the expense and inconvenience to jurors that it may entail if it is to be interrupted by reason of some manifestation or exacerbation of a debilitating condition which can affect the accused's fitness to be tried. Of course, that is not to exclude from the jury's consideration the question whether the condition is such that difficulties can be accommodated by an adjournment if and when they arise." 6Division 6 of the Crimes Act 1914 (Cth) establishes the regime to be followed in a Federal offence when the question of a person's fitness to be tried is raised. The charge of conspiracy is a Federal offence. 7The Mental Health (Forensic Provisions) Act 1990 governs the approach to be taken in a fitness enquiry for a New South Wales offence. The Court is required to approach the enquiry in a non-adversarial manner and to determine the question of fitness on the balance of probabilities: ss 6, 11 and 12 Mental Health (Forensic Provisions) Act . Neither party bears the onus of proof. The charge of supply is a State offence. 8Two issues have emerged during the hearing. The first is whether the accused has suffered a brain injury and the second is whether with legal representation and assistance, (to which I will refer in more detail at a later stage in these reasons), the accused is fit to stand trial. 9Medical reports, psychological reports, hospital notes, the Crown case summary and CCTV footage have been tendered by the parties in two volumes (ex A). It is presently convenient to refer to that material. 10It is plain from the CCTV footage that the accused was savagely assaulted by a fellow inmate when on remand at Parklea gaol on 1 October 2009. He was struck with considerable force by another inmate on the right side of the head with a pillow-slip that contained a 7kg sandwich maker. He was knocked unconscious, fell to the ground and was struck on the head again. The ambulance report records that the accused was unconscious for three to four minutes and was conscious when the ambulance officers arrived, although confused. He was bleeding from a deep laceration to his right temple. 11Lacerations to the right ear and temporal scalp were noted at Westmead Hospital, with a CT scan of his brain and cervical spine being reported as normal. Surgical drainage of a haematoma on the right side of his face was recommended. He was taken back to gaol that night and was transferred to Auburn Hospital on 30 October for the laceration of his ear to be sutured. A CT scan was recommended as was a consultation with a neurosurgeon but these recommendations were not carried out. 12Upon return into custody, the accused suffered from disabilities that included bleeding from the right ear, vertigo, occipital headaches, repeated episodes of sudden loss of consciousness, double vision, slurring of speech and poor concentration. 13Dr Stephen Allnutt, a forensic psychiatrist, saw the accused on 19 October 2009. In a report dated 23 October 2009, Dr Allnutt considered that there was evidence of a head injury that continued to persist and required urgent attention. He stated that the accused's functioning was at least mildly to moderately impaired secondary to ongoing cognitive problems. On the question of the accused's fitness to stand trial, Dr Allnutt said (Ex A4(a)p5): "At this stage your client has capacity in most of the Presser criteria; however I have concerns about his poor cognitive functioning, in particular his short term memory and concentration which might impair his capacity to follow proceedings and as a consequence of that provide you with instructions". 14Dr Allnutt saw the accused on 8 November 2009 and confirmed a recommendation that he should be seen by a neurologist and neuropsychologist. 15In the tender bundle, are a number of medico-legal reports that were apparently prepared in relation to a civil action, but they provide some insight into the accused's disabilities. 16The accused saw Dr Joseph Scoppa, an ear, nose and throat physician on 22 July 2010 for a medico-legal assessment. Included in his summary of the assessment of the accused's permanent impairment was a 6 per cent whole person permanent loss of hearing and tinnitus. 17In a report dated 8 August 2010, Dr Robert Adler, a specialist in rehabilitation medicine, observed that the accused had a gross tremor of the right arm that was impossible to manufacture and was definitely organic. In the context of head trauma this pointed to a serious degree of brain injury. The combination of diplopia, dysarthria tremor, and some imbalance suggested a midbrain lesion. The hearing loss, dizziness and bleeding from the ear suggested middle / inner ear injury. He noted that his assessment was incomplete as he did not examine the accused, but considered that the accused had neurological difficulties as a consequence of the head trauma on 1 October 2009. He strongly, suggested an urgent assessment by a neurologist but expressed his concern regarding the accused's ability to "make executive decisions, that may be needed in regard to legal proceedings" (ExA4(d)p10). 18Professor James Lance, a consultant neurologist, examined the accused on 17 August 2010 and published his report on that day. He opined that the seizures suffered by the accused were acute anxiety attacks. The more severe episodes that had led to loss of consciousness were not indicative of post-traumatic epilepsy. He expressed the opinion that the head injury was of moderate severity and was uncertain whether the accused's anxiety symptoms were entirely responsible for his apparently impaired cognitive function. Professor Lane proposed a full psychometric evaluation of cognitive function, an MRI of the brain and the vestibular function tests recommended by Dr Scoppa. He considered that the accused's prognosis depended on the adequate treatment of his anxiety state by psychiatric treatment and psychological counselling. 19In a further report dated 7 December 2012, Professor Lance considered that it is more probable than not that the accused did not suffer traumatic damage as a result of the assault. 20A neuropsychological assessment of the accused was carried out by Peter Rawling, a clinical neuropsychologist in August 2011. In a report dated 16 August 2011, Mr Rawling stated that the accused had performed very poorly on tests assessing intelligence, memory and attention, but "unfortunately, there was compelling evidence indicating that a lack of genuine effort was very likely contributing in a significant way, to the poor neuropsychological test results" (ExA4(h)p6). However, he did not exclude the possibility of genuine cognitive impairment. 21In a report dated 20 September 2011, Patricia Jungfer, a consultant psychiatrist diagnosed chronic post traumatic stress disorder and cognitive disorder secondary to a head injury. She considered that the accused's prognosis was poor. In a further report, Ms Jungfer expressed the opinion that the accused was not exaggerating or malingering his impairments. Her belief was that the accused's poor performance on psychometric testing was as a result of psychosocial factors. 22Volume two of the tender bundle includes hospital and clinical notes and there are a number of reports that relate to the applicant's treatment. I do not propose to refer to all of these reports, but will briefly refer to some of them. The accused was referred to the Erina Brain Injury Clinic, where he was seen by Dr Stuart Browne, a rehabilitation medicine specialist on 10 December 2010. Dr Browne noted that the accused's performance was quite poor in the Addenbrooke's Cognitive Examination. He opined that the accused had likely suffered post-traumatic seizures secondary to an extremely severe assault and had balance impairment, visual disturbance, hearing problems, and ongoing occipital headache. Dr Browne noted that the accused was keen to get treatment. 23The accused was reviewed by Dr Browne at the Royal Rehabilitation Centre at Ryde on 27 September 2011. The primary diagnosis is noted as being traumatic brain injury. Dr Browne reported that the accused was involved in a community-based outpatient rehabilitation program. The accused had identified short term memory problems as a major issue. Dr Browne reported that the accused had shown an increased ability to compensate for these problems using his iPhone. He was now independent in placing appointments and tasks in his iPhone and had assigned alarms to them which had significantly improved his compliance with therapy appointments. Dr Browne noted that the accused continues to experience headaches on a daily basis. A nerve block had helped, but the headaches remained. 24In a further report dated 13 December 2011, Dr Browne observed that his team had found it difficult getting regular commitments from the accused in therapy attendance. Dr Browne observed that the accused continued to have significant memory, organisation and communication problems and the occupational therapist could assist him to be more efficient with his prompting. 25Dr Browne observed in a report dated 13 March 2012 that the accused's ability to organise his life and thought processes had improved by using an iPad and iPhone. However, the position disclosed by Beth Causa in a report dated 20 December 2011, Dr Browne said was an accurate assessment of his current condition. Ms Causa explained: "He demonstrates significant cognitive and behavioural impairments as a result of Traumatic Brain Injury. These impairments would definitely impact on Mr Watt's ability to participate in your course at the present time. For example, Mr Watt demonstrates significant memory and organisational difficulties, so he would be likely to miss classes. He would also have difficulty learning new information from these classes. Furthermore, Mr Watt demonstrates significant communication problems including difficulty understanding basic written information, becoming overwhelmed in conversations, disorganised verbal expression, and difficulties comprehending what others say (especially when increased amount of information is presented, e.g. lecture-style)." 26There are a number of reports that directly relate to the issue of fitness to plead. Dr Olav Nielssen, a psychiatrist, in a report dated 3 April 2012 diagnosed traumatic brain injury. He did not perform formal testing of the accused's cognitive function, but stated that there was obvious impairment in the areas of the accused's attention and concentration, retrieval of information, verbal comprehension and expression, and in abstract concepts. He reported that there was no suggestion that the accused was attempting to exaggerate his intellectual impairment, and if anything, the accused had indicated that he wanted to participate in the trial and attempted to minimise the importance of obvious problems in his memory. 27During the interview, the accused told Dr Nielssen that he had "masses of material" in his case, but was unable to go through it because his memory was so poor. He said "I just can't remember even little things...its like the wheels are spinning and I don't get traction." The accused said that he made extensive use of his notes, on his iPad and said "as long as I have my iPad I will be right." Dr Nielssen observed that when he was taken to some of the entries made in the notes function on the accused's iPad, they were quite disorganised and difficult to understand. The accused told him that he could not remember why he had made some of the notes and when he got home, he did not understand the notes he had made. 28Dr Nielssen concluded that the accused was unfit to be tried. He stated (ExA4(l)p5): "I believe Mr Watt is unfit to be tried on his current charges. He has a general understanding of the nature of the charges and would be able to understand legal advice regarding the specific charges. He indicated that he intended to plead not guilty. He also has a general understanding of the nature of the proceedings and of the procedure followed in an adversarial trial, having sat through the trial of another person charged in relation to the same offence. However, he has significant residual impairment in intellectual function that would prevent him from retaining the large amounts of detail in the case against him. His intellectual disability renders him unable to follow the proceedings in a meaningful way and would leave him unable to provide reliable instructions to his legal representatives based on his knowledge and understanding of the evidence in the case." 29Dr Nielssen who interviewed the accused at the request of the accused's solicitors, expressed the opinion that as the injury occurred nearly two and a half years ago, there is unlikely to be significant improvement in the accused's intellectual function within the next twelve months. 30The accused was referred to Teresa Lee, a clinical psychologist and neuropsychologist, by the Commonwealth Director of Public Prosecutions for a neuropsychological assessment. In a report dated 9 July 2012, Ms Lee considered that the accused's "general intellectual performances are within, and at the lower end of the average range, suggesting some reduction (but not impairment) of his intellectual abilities" (ExA(a)p7). She found that his verbal memory for structural and contextual material to be significantly impaired with his attention span and working memory span markedly impaired. 31Ms Lee was of the opinion that the accused had likely sustained a traumatic brain injury, estimated to be of mild to moderate severity. She opined that further spontaneous recovery of cognitive functions would not be expected, but slight improvement or stabilization of cognitive functions was possible with the accused's participation at the Royal Rehabilitation Centre, and with the use of compensatory aids. However, Ms Lee concluded that the improvement of the accused's memory to the point of being able to follow court proceedings and other complex legal procedures seemed unlikely. 32When referring to the six key abilities (Presser criteria) to be fit to stand trial, Ms Lee found: (i) Criterion (a): The accused appeared to have a general understanding of what he has been charged with, the seriousness of the charges, and the penalty if proven guilty. (ii) Criterion (b): He was adamant that he would plead not guilty, but did not seem to know about "his right to challenge". (iii) Criterion (c): The accused appeared to understand the purpose of the proceedings. He could not describe the role of "prosecutor" and "defence" in the general sense, but only his perception of their roles in his case. (iv) Criterion (d): He may be able to understand the court proceedings at the time of his trial, but would not be able to follow them, in view of his impaired memory and poor attention. (v) Criterion (e): His deficits in memory, planning, and organization would impact on his ability to prepare for his defence. (vi) Criterion (f): He is adamant that he would defend himself, and it would not be necessary to instruct lawyers. 33Ms Lee considered that the accused had made a genuine effort during the assessment. Her conclusion was that he is not fit to stand trial. 34There are three reports from Dr Ross Mellick, a consultant neurologist, who saw the accused on behalf of the Commonwealth Director of Public Prosecutions. In his report dated 10 August 2012, Dr Mellick expressed the opinion that the accused had suffered a serious head injury and that there are a number of symptoms which are reported to date from that head injury. He reported that on the basis of the available data, the head injury was sufficient to result in a brain injury. However, no adequate neurological investigations had been performed with regard to properly assessing the presence, absence or degree of brain injury. 35Dr Mellick subsequently examined the MRI scans performed on 10 September 2010 and could not identify any sign of a brain injury. He noted that the report prepared by Dr Schneir also recorded the findings to be normal. Dr Mellick observed that Mr Rawling's reference to post - traumatic epilepsy and to the possibility of brain injury having occurred at the time of the assault was not supported by the MRI scans. Dr Mellick drew attention to the possibility that the head injury suffered by the accused might have resulted in no MRI abnormalities or identifiable clinical abnormalities, but nevertheless, might have produced epileptiform discharges resulting in cognitive and higher function impairments. 36A sleep deprived EEG was performed at Dr Mellick's request. In a report dated 2 October 2012, Dr Mellick noted that the sleep deprived record was normal. Accordingly, Dr Mellick was unable to provide clinical, MRI or electroencephalographic evidence of a brain abnormality resulting from the assault. Dr Mellick noted that he was essentially in agreement with Professor Lance who had not established any specific brain injury. 37Dr Rosalie Wilcox, a general and forensic psychiatrist, interviewed the accused on 31 July 2012 at the request of the Commonwealth Director of Public Prosecutions. In a report dated 11 October 2012, Dr Wilcox expressed the opinion that the accused was likely to have difficulty following anything that requires a high level of attention and concentration. She found that the accused had difficulty recalling specific events and was easily distracted. Dr Wilcox opined that the accused's function is impaired in the area of memory, planning and organisation. She noted that the accused's decision to defend himself appears to be irrational and based on paranoia. He would have difficulty both in understanding the substantial effect of any evidence that may have been given against him and in the ability to make his defence to the charges especially if he defends himself. 38Dr Wilcox noted that the committal proceedings had occupied fourteen hearing days over approximately two years and the accused had been present and instructed his counsel. She opined that if the accused changed his mind and agreed to legal representation, he was unlikely to provide reliable instructions due to his understanding of the charges. Dr Wilcox did not consider that the accused was malingering and had appeared co-operative with questioning. Dr Wilcox concluded that the accused presents with a traumatic brain injury as a result of the assault. Although the MRI and CT scan did not demonstrate pathology, Dr Wilcox considered that the accused's injury based on the period of post traumatic amnesia was mild to moderate in severity. Dr Wilcox was of the view that as it has been over three years since the accused was assaulted, there was unlikely to be any further improvement within the next twelve months. 39In a report dated 29 November 2012, Dr Wilcox mentioned that she had reviewed material that included the Royal Rehabilitation Centre notes. She reported that the accused had obtained considerable assistance from both occupational therapy and speech therapy and had developed competence in the use of electronic aids. She noted that the accused was said to have demonstrated good ability to record all key words/ideas from television programs and provide a clear summary of each by February 2012. 40Dr Wilcox went on to conclude that the accused has had a mild traumatic brain injury. She stated that she would not have expected disabling cognitive impairment on the basis of the head injury. Dr Wilcox noted that she had previously indicated on the probabilities he was unfit to plead as the accused had stated that he was going to defend himself and she was concerned that he would have difficulty organising information and formulating a plan. She noted the accused's considerable training and proficiency in the use of memory aids. 41Dr Wilcox said at (ExA4(g)p2): "It is now my opinion that if Mr Watt has changed his mind about representing himself and is accepting of assistance from his legal team and is allowed to use his various technical aids in association with regular breaks that he would be able to participate in the course of a long trial, and should be able to instruct his legal representatives and provide evidence." 42I turn to the issue of brain injury. Brain injury has not been detected on the CT scans, MRI scans and the "sleep deprived EEG". However, Dr Wilcox, Dr Nielssen, Dr Browne and Ms Lee are of the opinion that it is likely that the accused has suffered a brain injury, whereas Dr Mellick considers that it is not probable that he did. Professor Lance was of the opinion that acute anxiety attacks were responsible for the accused's seizures, whereas Ms Jungfer had diagnosed chronic post-traumatic stress disorder and cognitive disorder secondary to head injury. Dr Browne's primary diagnosis is noted as being traumatic brain injury. 43Dr Mellick gave evidence that within the frames of reference of neurology, there is no evidence of brain injury: (T 60 8-9). He agreed that the accused's presentation and history could be consistent with brain damage, and there being no sign on the MRI and EEG did not exclude brain injury. However, Dr Mellick went on to say (T61 19-21): "It does not exclude it, but in the overwhelming number of cases, in the situation of a head injury of significance, if there is a brain injury consequent upon trauma, then it would be clear. It would be made clear and diagnosable by this gamut of investigations, including the MRI and EEG. I am trying to make sure that the playing field is level. The fact that it is not shown, does not mean it is common - that it is usual." 44When asked about Dr Nielssen's opinion that brain injury can be present, but not picked up on an MRI, Dr Mellick replied T65 9-10: "You couldn't say it didn't happen. It's possible, but it's not likely. It's not probable. It's not usual." Professor Lance supports this view. 45Dr Nielssen had earlier expressed the opinion that it was "a little bit surprising" that the MRI and EEG had not shown abnormality, but said that "the resolution of damage shown on an MRI is about 1mm and the damage in hypoxic brain injury and traumatic brain injury is at a microscopic level so it may not show any" (T 47 24-30). As to an EEG, Dr Nielssen explained that it "is a non-specific test of abnormal electrical waves on the surface of the brain so it didn't show the deep structures it just shows the surface." He said that it was a little surprising to find a completely normal EEG in the presence of what looked to be quite severe neurological injury, but that did not prove anything. 46When referred to Dr Jungfer's diagnosis of post-traumatic stress disorder, Dr Nielssen considered that to be a less important disorder than a brain injury. He explained that although it did seem that the accused had anxiety symptoms, they were not causing his day-to-day social disability. As to Professor's Lance's opinion of anxiety, Dr Nielssen said that he did not find the accused's anxiety affected his cognitive function during the interview. 47Dr Browne strongly expressed the opinion that the accused has suffered traumatic brain injury. He has impairments in planning, concentration, comprehension and expression. 48Dr Wilcox was of the opinion that the absence of abnormality on the MRI and EEG did not mean that the accused did not have a brain injury. Her conclusion was that of traumatic brain injury as a result of the assault. Dr Wilcox thought that the accused was in a very highly stressed state which could affect concentration and attention. She said that short term memory particularly relies upon maintaining attention and registering what is going on. Dr Wilcox said that she did not pursue at length Dr Jungfer's diagnosis of post-traumatic stress disorder, but thought that he had symptoms of PTSD, but did not feel that the accused fulfilled all of the PTSD criteria. 49Whilst accepting that neurology was not her area of speciality, Ms Lee gave evidence that the MRI scan does not show microscopic changes in the brain such as axonal damage. Her conclusion of the severity of the traumatic brain injury was based on the duration of loss of consciousness after the event, the Glasgow Coma Scale score and the duration of post-traumatic amnesia. 50Dr Mellick did not exclude the possibility of brain injury. It is over three years since the accused was assaulted in Parklea gaol. He continues to suffer from significant impairment to his intellectual function which includes poor articulation, deficits in memory, attention, planning and concentration. None of the expert witnesses, who have given evidence suggest that the accused's impairments are not genuine. I do not think that his subsisting impairment can be explained by anxiety or post-traumatic stress disorder. Although it is not usual that brain injury is not detected on an MRI and EEG, I accept the opinions of Dr Browne, Dr Nielssen, Dr Wilcox and Ms Lee that it is more probable than not that the accused has suffered a brain injury. 51Doctor Nielssen, Dr Wilcox and Ms Lee are all of the opinion that the accused is not fit to stand trial if he represents himself. Dr Wilcox, however, has expressed the view that he is fit provided he is legally represented and receives certain assistance, but Dr Nielssen and Ms Lee do not agree with that opinion. 52The issue is whether legal representation, the accused's acceptance of his legal teams assistance, his use of technical aids in association with regular breaks and the provision of daily transcripts, is likely to overcome the accused's intellectual impairments so that he is able to understand the substantial effect of the evidence during the trial, give necessary instructions to his counsel and give reliable evidence if he elects to do so. 53Dr Wilcox was of the opinion on the balance of probabilities that the accused was fit to stand trial provided he was legally represented, was allowed to use the various technical aids, and was permitted to have regular breaks. 54Dr Wilcox accepted that she could not predict with certainty how the aids would help the accused, that cognitive fatigue could possibly be a problem particularly in a long trial and that his impairment might impact upon his ability to follow evidence, to remember what had occurred during the trial, to organise information and to give reliable instructions to his counsel. She said that the accused can give evidence, but his evidence may fluctuate or be variable so that people might question its reliability. 55Dr Browne made mention of the difficulties that the accused would have in comprehending the complexity of the information in a criminal trial. The length of time and the complexity of the material that he would be required to deal with in the witness box would impact upon his ability to recall information and might impact upon the reliability of his testimony. Cognitive fatigue might be a factor. Whilst memory aids might provide some assistance as would the simplicity of questions, Dr Browne did not think that the accused could review transcripts over night. He said that the increasing complexity of new material would result in poor performance on the part of the accused. 56Ms Lee considered that the accused would have difficulty following the trial even if he was legally represented. She did not think that the taking of regular breaks would assist his memory. She was unsure that going through daily transcripts of the trial, even with assistance, would help the accused to remember. In reference to using memory aids, Ms Lee said that the accused as recently as July, did not really know what he had written. He had been found to be disorganised and could not remember. She confirmed her opinion that it was unlikely that there would be an improvement in the accused's general condition within the next 12 months. Ms Lee expressed a concern as to the amount of assistance that a daily transcript and going over matters at the end of the day would provide to the accused. She referred to his difficulties with memory and the impact that cognitive fatigue might have upon him. Ms Lee accepted that the accused's thinking skills would be impacted upon by giving lengthy evidence. She thought that cross-examination would be difficult for him. She mentioned his memory problems and the difficulties that he would have in putting everything together. 57Dr Nielssen gave evidence that the accused's capacity to pay attention, to register what is said, to understand the context in which things are said, to retain the information over a period of a day or subsequent days, and then to use that information to provide ongoing instructions was significantly impaired. He opined that the accused was unfit to stand trial, even if he had the benefit of legal representation, regular breaks, the use of technical aids and a daily transcript. Dr Nielssen said that although with reinforcement, there may be some improvement in learning, the accused had an underlying problem with memory that prevents useful retention of what is said in court, what he reads in transcripts and has been advised and told. Dr Nielssen said that the accused had a "new learning problem," that it is not just a problem of memory but was a problem of conceptual understanding: T 51 35-40. He referred to the difficulties that the accused would have if he chose to give evidence. He mentioned disorganisation of speech, the lack of appreciation of the nuance in questions and the difficulties that would be experienced in remembering the detail of what he had been questioned about. Conclusion 58The Presser criteria are to be considered in the light of the complexity and the length of the accused's trial. I do not accept that in such a complex and lengthy trial before a jury that the accused's intellectual impairments can be overcome by legal assistance, technical aids, transcripts and regular adjournments. I prefer and accept the evidence of Dr Nielssen and Ms Lee on this issue. I am not satisfied that the accused with legal representation and the assistance proposed by Dr Wilcox will be able to follow the course of the proceedings, to understand the substantial effect of the evidence and to give his counsel instructions, including his version of the facts, sufficient to make his defence and answer the charges. 59I am satisfied on the balance of probabilities that the accused is unfit to stand trial. 60Under Division 6 of the Crimes Act (Cth), where "a court" finds the person unfit to be tried for a Federal offence, the court must determine whether a prima facie case has been established: s 20B(3) Crimes Act (Cth). This question cannot be determined today. 61Accordingly, I make the following orders: 1. I find that the accused Adam Keith Watt is unfit to be tried for the following offences: (i) Between about 1 December 2005 and 30 September 2007 at Sydney in the State of New South Wales and elsewhere, did conspire with Radoslav Spadina and divers others to import a substance, intending to use or believing that another person intended to use any of the substance to manufacture a controlled drug, the substance being a border controlled precursor, namely pseudoephedrine, and the quantity imported being a commercial quantity contrary to subsection 307.11(1) of the Criminal Code with subsection 11.5(1) of the Criminal Code. (ii) Loek Weerden, Jan Plas and others between about 1 December 2005 and 30 September 2007, did supply an amount of a prohibited drug, namely pseudoephedrine, being an amount which was not less than the large commercial quantity applicable to that prohibited drug and that Adam Keith Watt between about 1 December 2005 and 30 September 2007 at Sydney in the State of New South Wales and elsewhere, did aid, abet, counsel and procure the commission of the said offence by the said Loek Weerden, Jan Plas and others contrary to subsection 25(2) of the Drug Misuse and Trafficking Act with subsection 27 of the Drug Misuse and Trafficking Act. 2. In accordance with s 14 of the Mental Health (Forensic Provisions) Act 1990 I refer Adam Keith Watt to the Mental Health Review Tribunal. 3. Pursuant to s 14(b)(iii) of the Act, the accused's conditional bail is continued. The following condition is added to the accused's bail: The accused is to attend at the Royal Rehabilitation Centre Sydney Brain Injury Outpatient Clinic and is to be involved in the community - based outpatient program and such other programs as may be directed by Dr Brown or by the Rehabilitation Specialist in charge of the Brain Injury Community Rehabilitation Scheme. 4. I direct the Court Registry to provide the following documentation to the Tribunal: (a) A copy of this finding. (b) A copy of the accused's bail conditions. (c) The CCTV video footage, medical, psychological, hospital and clinical notes tendered in the proceedings (Ex A) (d) A transcript of these proceedings. ********** Amendments 05 August 2024 - Publication restriction lifted. 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: 05 August 2024