R v Maxwell

The accused, James Maxwell, has been committed to stand trial in this Court on an indictment alleging that he murdered Shane “Wock” De Britt (the deceased), as a participant in a joint criminal enterprise. There is a question as to Mr Maxwell’s fitness to be tried. That is an issue which is to be determined on the balance of probabilities by the application of the relevant provisions of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the “Act”).

For the purposes of this judgment, Mr Maxwell will be referred to either by his name or as “the accused”.

The Crown alleges that sometime between 12:35am and 4:04am on Tuesday 14 January 2020, the deceased was shot and killed at his home in Eurimbla, New South Wales, by a single shot from a shotgun to the head as he lay in his bed. It is the Crown case that this was a planned and premeditated murder organised by Brenton Hayes and Phillip Woods and carried out by members and associates of the Grudge Bringers Social Club.

The deceased was the President of the Bandidos Central West Chapter and Mr Woods was the President of the Grudge Bringers Social Club. At the time of his death, the deceased and the Bandidos were involved in an escalating conflict with Mr Hayes and Mr Woods, and members and associates of the Grudge Bringers. The Crown alleges that the conflict led to the formation of an agreement and plan by Mr Hayes, Mr Woods, NH, and other members of the Grudge Bringers to kill the deceased.

It is the Crown case that Brenton Hayes, Phillip Woods, James Maxwell, Brian Farnsworth, NH, Jace Harding, and Brendan McLachlan were participants in a joint criminal enterprise with each other to kill the deceased. The liability of the accused for murder allegedly arises as follows:

Mr Maxwell was a member of the Grudge Bringers, and a “Guardian” in the club. At the time of the alleged murder, Mr Maxwell and his wife, Heather Maxwell, lived together. Mr Farnsworth and his partner Trudi Schwarz were staying with Mr Maxwell at the time. Mr Maxwell drove a camouflage pattern Holden VR utility.

The Crown case with respect to Mr Maxwell is that he was a participant in a joint criminal enterprise to kill the deceased. Armed with a loaded firearm, and wearing dark clothing which covered his face, Mr Maxwell attended the home of the deceased in the company of the co-accused who were also armed with loaded firearms. Mr Maxwell was nearby when the co-offenders, armed with loaded firearms, entered the home of the deceased. He was not present in the home when the deceased was shot and killed. The Crown further alleges that he was party to an agreement to destroy the vehicle used in the commission of the offence by fire and was present when that occurred. After the alleged murder, Mr Maxwell knowingly provided a false alibi to police for himself and his co-accused.

The accused relies on the following exhibits:

Dr Lennings and Dr Ellis were called to give evidence in the hearing and were cross-examined.

The Crown relies upon exhibit G consisting of the following:

The Crown called Dr O’Dea to give evidence in the hearing.

Dr Andrew Ellis, Forensic Psychiatrist, provided a 13-page report dated 1 March 2023.

Dr Ellis opines that the accused is suffering from a mental health impairment (psychotic disorder) which is presently characterised by intermittent hallucinations and previously by delusions. Additionally, the accused presented with a cognitive impairment, being an intellectual disability and a potential neurocognitive disorder related to deterioration, in the context of psychosis and possible vascular damage to the brain. Dr Ellis opines that it is likely that this Court would find the accused unfit to be tried owing to the combination of his psychotic disorder and cognitive impairment. The opinion of Dr Ellis regarding each criteria listed in s 36 is addressed as follows.

The accused has a basic understanding of the offence of murder, however, he has difficulty conceptualising how this translates to conspiracy in a joint criminal enterprise. He showed difficulty with the more complex concept of being present and possibly facilitating or abetting the acts of others.

The accused has an understanding of the basic pleas available to him. He has a more rudimentary ability to remember more complex mental health defences. Of concern, is his potential to change his mind based on social pressures or frustrations, and thereby change his plea. It is not likely he would appreciate the consequence of traversing his plea or changing it periodically in response to his state of mind at the immediate time.

Dr Ellis opines that the accused understands his right to challenge jurors and can exercise this through his legal representatives.

The accused has limited familiarity with the legal system. He has a basic understanding of the roles of persons in court, and that in general, a trial is an investigation of his conduct. He can distinguish between truth and lies.

Dr Ellis opines that the accused presented with some evidence of mild memory difficulties and there was a possibility that the accused would be more anxious in a court environment which may overwhelm his cognitive capacity to attend to, and remember, what had occurred. Dr Ellis’ opinion is based on the accused’s underlying intellectual disability and subsequent cognitive impairment.

The accused has a basic understanding of the types of evidence in a generic case, and how evidence may be used in his proceedings. In this case, where evidence will be presented over weeks, the focus being on his state of mind and intentions when acting, his difficulties with higher-order concepts may lead him to have problems understanding the substantial effects of more complex evidence of motive.

While the accused was able to give an account of his movements and mental state in the context of a psychiatric interview, Dr Ellis opines that he changed his account from time to time, often in response to the style of questioning. Dr Ellis concluded that the accused may seek to “close down” in an interview when distressed, by agreeing with the questioner or giving answers that seek to please the questioner. In this way, his ability to make a consistent defence is likely impaired.

Dr Ellis opines that the accused was able to provide a satisfactory account of events at the material time, albeit limited by his reported memory problems. The accused indicated that he would be able to repeat his account of the facts but may struggle.

Dr Ellis opines that the accused held wavering views about what defence or plea he would rely upon. This was based on the accused’s desire to resolve things quickly, rather than present a considered defence.

In evidence-in-chief, Dr Ellis adhered to his report maintaining that the accused was unfit for trial. Dr Ellis gave evidence that the accused has a mental health impairment and made a diagnosis of a psychotic disorder. The diagnosis had been characterised by hallucinations in the form of auditory voices and delusions, specifically, beliefs that the accused was being persecuted and a general sense of paranoia and suspicion.

Dr Ellis confirmed the diagnosis of intellectual disability. The diagnosis of intellectual disability is based partly on the history of the accused requiring support in schooling; only being able to participate in employment which was not intellectually onerous; and requiring informal support to be independent in the community. Dr Ellis gave evidence about the basis upon which he formed his opinion:

Dr Ellis gave evidence explaining the basis of his conclusion that the accused did not have an understanding of the offence the subject of the proceedings:

Dr Ellis agreed with Dr Christopher Lennings’ observations that although he explained to the accused important issues surrounding the concept of evidence at trial, he could not recount such concepts apart from providing a rudimentary response. Dr Ellis gave evidence that this was consistent with an intellectual disability and that the accused’s conceptual reasoning and ability to understand more complex problems was limited. Although the accused could understand fundamental concepts, as they became more difficult, his ability reached a “ceiling”, and it was difficult for him to comprehend. In this respect, Dr Ellis gave evidence as follows:

In relation to the accused being placed in a court environment, Dr Ellis said:

In terms of a trial estimated to take 10 weeks, the impact on the accused’s stress levels would cause an exacerbation of his auditory hallucinations. His capacity to follow the proceedings, given the complexity of the evidence, would be compromised, particularly as the trial involves numerous co-accused. With respect to this issue, Dr Ellis gave the following evidence:

The accused tended to be compliant. This potentially affected his ability to plead to the charge. With respect to this criteria (s 36(1)(b)), Dr Ellis said that he is “sitting on the fence”:

Dr Ellis said that people with an “intellectual disability can be more susceptible to suggestion or social pressure in answering questions”, and that there was evidence for this in the accused’s case. Dr Ellis gave evidence:

Dr Ellis was satisfied that the accused could adequately exercise his right to challenge jurors. The accused is able to understand effectively what a juror is and can exercise his right to challenge.

Dr Ellis maintained his opinion that the accused has the capacity to understand, in general terms, the nature of a trial. Dr Ellis remarked in cross-examination:

In his evidence, Dr Ellis confirmed that the accused’s cognitive impairment affected his ability to follow the course of the proceedings so as to understand what is going on in a general sense (s 36(1)(e)). While the accused could focus in an interview with a single person, the presence of his cognitive difficulties and their interaction with his mental health condition meant that he would not be able to understand what was taking place in a general sense in the trial. The combination of the accused’s limited ability to use conceptual reasoning, memory problems, difficulty shifting his focus of attention, and distraction by voices or paranoia, would impact his ability to follow the course of the proceedings. His lack of ability to be flexible in his thinking was impaired and will present difficulties when the proceedings will likely move from one accused to another, or from one scenario to another. In cross-examination, Dr Ellis said that the accused presented with “great difficulty” following the course of the proceedings:

The length of the trial would add to the accused’s stress and likely exacerbate the “voices or paranoia”:

With respect to the accused’s executive functioning, Dr Ellis was asked:

Dr Ellis contended that the accused’s impairment affects his capacity to understand the substantial effect of any evidence. He has a generic understanding of what evidence is and, in particular, “concrete” forms of evidence. However, he struggled to understand concepts such as joint criminal enterprise, evidence of motive, or evidence of particular mental states. Dr Ellis’ evidence in that regard was as follows:

The accused’s impairment also affects his capacity to make a defence or answer to the charge. Dr Ellis gave evidence that while it was possible for the accused to make a defence initially, his ability to sustain those instructions across a lengthy trial could waver due to his emotional state changing over the course of the trial. With respect to s 36(1)(g), and the accused’s ability to make a defence or answer to the charge, Dr Ellis was asked:

In relation to s 36(1)(h), Dr Ellis said that the accused might be able to instruct his legal representatives and provide a version of the events, but it is likely to fluctuate. Dr Ellis was cross-examined on this issue:

Dr Ellis concluded that the accused’s impairment increased the propensity to changeability. In a stressful state, he is prone to changeability which in turn disrupts his ability to provide a version of events and instruct his lawyers.

Dr Ellis gave evidence that there is some overlap between the criteria set out in s 36(1)(g)–(i). The interaction between the accused’s intellectual disability and mental illness operates to impair his capacity with respect to these criteria.

Dr Christopher Lennings, Clinical and Forensic Psychologist, provided a 12-page report which was tendered by defence counsel dated 22 May 2022, and a 6-page report dated 8 August 2022. The report dated 22 May 2022, focused on issues relating to the admissibility of the ERISP. The Crown did not press the tender of the ERISP. However, the contents of this report remain relevant to the question of fitness.

Dr Lennings opines that the accused presented with significant cognitive and executive functioning deficits, with a slightly more functional short-term memory, but a style of responding that was meek and eager to please. As a consequence, the accused agreed with questions he had little understanding of.

In his report dated 22 May 2022, Dr Lennings conducted numerous cognitive assessments on the accused which included the following:

The accused was administered the BRIEF-SR. The test is a measure of the ability to solve problems. The accused’s response to the BRIEF-SR was valid. His scores revealed problems in both behavioural and cognitive control, and he presented with impaired executive function. His profile suggested a person who has difficulties inhibiting behaviour once a behavioural chain is activated, and difficulties shifting between tasks. He has a poor working memory and is poor at planning and organising behaviour. He is a person who responds to direction but has little initiative and struggles to monitor, or be aware of, his thoughts and feelings.

The accused was administered the WASI. The WASI is a measure of intelligence consisting of four subtests. The accused’s performance was reasonably even across the subtests, suggesting that a reliable estimate was achieved. His overall intelligence is best described as very low, falling into the bottom 0.5% of the population. His verbal skills were also found to be low, falling into the bottom 1% of the population. His non-verbal skills scored in the bottom 2% of the population. Overall, Dr Lennings opines that his cognitive ability is consistent with someone with an intellectual disability.

The accused was administered the Coding (Digital Symbol) subtest of the WAIS. The accused’s performance on this test was commensurate with his assessed intelligence, falling into the bottom 2% of the population. His thought processes are slow and are also impaired. The accused was administered the Digit Span subtest of the WAIS. The accused’s performance on this test was consistent with his assessed IQ. He scored in the bottom 5% of the population.

To further assess executive functioning, the accused was asked to complete the Trail Making subtest from the Kaplan D-KEFS. The Trail Making Test measures the flexibility of thinking on a visual-motor sequencing task. It requires the person to join a sequence of numbers and alternate between a sequence of numbers and letters. The accused’s performance on this test was measured by both time to completion and error scores. On both measures, he was impaired. His error score of three was at the 7th percentile for his age.

The accused was administered the WMS. His overall verbal memory score placed him in the bottom 10% of the population, suggesting that whilst by conventional standards he has a poor verbal memory, it is better than expected, based on his other cognitive tests.

The accused was administered the Rey Complex Figure Test. The Rey Complex Figure Test is a measure of executive functioning and memory. On both the copy and the recall tasks, the accused’s performance was grossly impaired. A feature of his performance was that he retained the gestalt but could not recall details. His performance was not consistent with brain damage, rather it reflected severe cognitive limitation.

Dr Lennings concluded:

In his report dated 8 August 2022, Dr Lennings conducted a review utilising part of a protocol to assess fitness in adults. This protocol, the Australian and New Zealand Evaluation of Fitness to Stand Trial – Revised (ANZ-EFST-R) has been subject to evaluation and preliminary results are supportive of its use as a structured interview for the purpose of assessing fitness.

In order to explore whether the accused understood the concept of evidence, Dr Lennings explained that there is a range of material that could constitute evidence, such as photographs, videos, statements, and parts of interviews he had given to police. Approximately 30 minutes after explaining the concept of “evidence”, the accused was unable to advance on his original answer other than saying evidence was statements or perhaps messages. He was unable to learn a more sophisticated understanding of evidence other than “stuff that they may have against you”. Suggestive that he has little understanding of how he might evaluate evidence or how he might assist his lawyer in responding to evidence which is used against him.

The accused’s understanding of the evidence his counsel might seek to adduce was limited to an explanation of “all the evidence they might have is the same as the other people and that is evidence against me”. Dr Lennings opines that the accused appeared to “have done no learning” as a result of his attempt to explain to him the difference between evidence that might be useful to him, as opposed to evidence that might be used against him. This failure to understand suggests that the accused has great difficulties in providing instructions as to the nature of the evidence against him or the nature of evidence that might be beneficial to him.

In his report, Dr Lennings stated that the accused appeared to be able to provide a narrative of events consistently across the two police interviews and that he can provide some basic instructions to counsel as to the “ultimate issue”.

Dr Lennings gave evidence in this Court on 11 September 2023. He maintained that he had not resiled from the findings set out in his reports.

In examination-in-chief, Dr Lennings gave evidence that the accused did not have the capacity to understand the offence the subject of the proceedings for numerous reasons. Dr Lennings gave the following evidence:

Dr Lennings gave evidence that the accused is unable to plead to the charge. Dr Lennings said in examination-in-chief:

In examination-in-chief, Dr Lennings gave evidence that the accused could not exercise his right to challenge jurors. Dr Lennings said the following with respect to this criteria:

In examination-in-chief, Dr Lennings gave evidence that while the accused could understand that he was in court, he could not understand “much more about it than that”. Dr Lennings gave evidence that the accused could not understand that his trial is an enquiry into being part of a joint criminal enterprise.

In examination-in-chief, Dr Lennings gave evidence that the presence of the accused’s cognitive and mental health impairments will significantly impact his capacity to follow or understand the proceedings. Dr Lennings noted that the accused’s sensory impairment will also compound these difficulties. Dr Lennings gave evidence that the difficulties the accused would face cannot be adequately accommodated by breaks in the proceedings. Dr Lennings said the following in this respect:

Dr Lennings said that the accused’s difficulties with hearing will additionally affect his ability to understand the offence. Dr Lennings gave the following evidence in examination-in-chief:

In examination-in-chief, Dr Lennings stated that the accused was unable to understand what was meant by “evidence” in any relevant way. Dr Lennings gave evidence that the impact of the accused’s impairment on his ability to understand the substantial effect of any evidence given in support of the prosecution, could not be ameliorated with breaks. In this respect, Dr Lennings said the following:

In examination-in-chief, Dr Lennings gave evidence that the accused could not make a defence or answer to the charge (s 36(1)(g)). Dr Lennings gave the following evidence:

In examination-in-chief, Dr Lennings said that the accused was unable to instruct his legal representatives. With respect to s 36(1)(h), Dr Lennings said:

Dr Lennings gave further evidence that the accused was unable to decide what defence he will rely on and make that decision known to his legal representatives and the court (s 36(1)(i)). Dr Lennings said the following in examination-in-chief:

Dr Jeremy O’Dea, Forensic Psychiatrist, provided a 17-page report which was tendered by the Crown, dated 6 June 2023. Dr O’Dea opines that on balance, the accused is fit for trial.

Dr O’Dea considered the matters raised by Dr Ellis and Dr Lennings and acknowledged that the accused’s mental state and intellectual functioning would likely impact his ability to understand the substantial effect of any evidence that may be given in support of the prosecution and that it was likely to impact on his ability to instruct his solicitors accordingly. However, he was of the view that on balance, and with adequate and appropriate support by the court, the accused would be able to follow the course of the proceedings; would be able to understand the substantial effect of any evidence that may be given in support of the prosecution; and to instruct his solicitors accordingly in order to make an adequate defence to the charges.

Dr O’Dea opines that while the accused had attracted a number of different psychiatric diagnoses, his clinical condition would be best understood as meeting the criteria for a schizophrenic spectrum disorder, complicated by substance abuse and intellectual disability.

Dr O’Dea noted the accused’s history of learning and intellectual difficulties, being reported as a very low cognitive ability as assessed by Dr Lennings in April, May and August 2022; his history of adaptive functioning; and his presentation with limited but adequate overall intellectual functioning. Dr O’Dea concluded that while the accused may meet the criteria for intellectual disability, the level of his disability is likely to be mild or borderline.

Dr O’Dea opines that the accused’s ongoing auditory hallucinations and mood disturbances, as part of his overall schizophrenic spectrum disorder, would be considered ongoing disturbances of perception and mood, and are significant for clinical diagnostic purposes. Dr O’Dea concluded that the accused has a mental health impairment, as defined in s 4 of the Act.

However, while the accused may have borderline intellectual functioning or a mild intellectual disability, his level of adaptive functioning may preclude him from meeting the criteria of a cognitive impairment as defined in s 5 of the Act.

The accused was able to convey an adequate understanding of the charges against him, the various pleas available to him and their consequences, the various roles and responsibilities of individuals present in his proceedings, and his rights throughout the proceedings. He also appeared to be able to convey a defence.

Ultimately, Dr O’Dea was of the view that although the accused’s trial may potentially impact on his psychiatric status and associated cognitive functioning, adequate and appropriate accommodation by the Court, such as more detailed explanations, regular meal breaks and the use of appropriate support persons, are likely to enhance his fitness to be tried.

Dr O’Dea gave evidence that the accused has the capacity to understand the offence the subject of the proceedings. In evidence-in-chief, Dr O’Dea said:

Dr O’Dea gave evidence that questions of the accused’s capacity to understand the offence the subject of the proceedings would be in terms of whether, with his solicitors, he is able to reach a satisfactory level of understanding of the offence in order to mount a defence. According to Dr O’Dea, the accused appeared to have that capacity.

Dr O’Dea gave evidence that the accused is able to plead to the charge. In evidence-in-chief, Dr O’Dea said the following:

Dr O’Dea gave evidence that the accused has the capacity to follow the course of the proceedings so as to understand what is going on in a general sense. However, he said that the accused presented with problems relating to his memory and being anxious in court. Dr O’Dea gave the following evidence:

In relation to Dr O’Dea’s reference to “accommodations by the Court”, he was asked:

In relation to evidence of mild memory difficulties impacting on his capacity to follow the proceedings, Dr O’Dea gave the following in evidence-in-chief:

Dr O’Dea gave evidence that the accused has the capacity to understand the substantial effect of any evidence given against him. Dr O’Dea was asked to comment on Dr Ellis’ evidence referring to the accused’s difficulty in understanding concepts such as motive and mental state. In evidence-in-chief, Dr O’Dea said the following:

Dr O’Dea gave evidence that the accused has the capacity to make a defence or answer to the charge. With respect to the accused becoming stressed, Dr O’Dea accepted that the accused has poor stress management but responds well to targeted intervention. In evidence-in-chief, Dr O’Dea said:

Dr O’Dea maintained his opinion, as expressed in his report, that the accused would be able to instruct his legal representatives and make an adequate defence to the charge.

The question of an accused person's fitness to stand trial is to be found in Part 4 of the Act. Division 1 of the Act sets out preliminary matters to be taken into account: see ss 35–39.

The test contained in s 36 relevantly provides:

Section 37 of the Act provides for when the question of fitness may be raised, in the following terms:

Section 44(5) of the Act provides the matters which the Court may consider in determining whether a defendant is unfit to be tried for an offence:

Section 47–53 of the Act deal with the consequences of a finding that a person is unfit.

In R v Risi [2021] NSWSC 769, Beech-Jones J (as his Honour then was) pointed out that s 47 of the Act presents the Court with a “binary choice” and that:

His Honour discussed the operation of ss 47–51 of the Act in the following terms:

A person's fitness is to be determined on the balance of probabilities. Such an inquiry is not to be conducted in an adversarial manner. There is no onus of proof in relation to such an inquiry: see ss 38, 44(3) and 44(4) of the Act.

Section 36 of the Act reflects the common law test stated in R v Presser [1958] VR 45 (Presser), which was held by the High Court in Kesavarajah v The Queen (1994) 181 CLR 230 at 245–246; [1994] HCA 41, to state the essence of what is required for an accused to be fit at common law. The test, both at common law and as set out in s 36 of the Act, identifies the minimum standards which need to be met before an accused can be tried without unfairness or injustice to him/her. Put another way, they are minimum standards required to ensure effective participation by an accused in his/her trial.

The list of relevant criteria is not exhaustive and does not limit the grounds on which a court may consider a person to be unfit to be tried for an offence: see s 36(2) of the Act.

The nature, length, and complexity of the trial is relevant to the question as to whether Mr Maxwell is unfit to be tried. The trial involves a joint indictment relating to six accused (including Mr Maxwell). At the beginning of this judgment, I summarised, in brief terms, the Crown case against Mr Maxwell. However, the proposed evidence is more extensive and includes witness testimony, telephone intercepts, listening device material, and at least some digital communication, as well as expert evidence in the field of ballistics.

Although six separate trials, they will be heard jointly for convenience. While some of the evidence will not relate to Mr Maxwell directly, it will be admissible against him. The Crown relies upon two bases of liability for murder against this accused, namely joint criminal enterprise and extended joint criminal enterprise.

Concepts such as planning; agreement (proved by words, actions or inferences drawn from proved facts); and participation by presence, assistance and/or encouragement, are central to the Crown case. The Crown Case Statement reveals the complexity of the trial, both factually and conceptually. Furthermore, the estimate of the trial is approximately 8–10 weeks.

It is in this context that I have considered the expert evidence as it bears upon the criteria under s 36. The three experts agree that Mr Maxwell is a person who has a mental health impairment, pursuant to s 4(1) of the Act.

Dr Ellis and Dr Lennings are also in agreement that Mr Maxwell is a person who has a cognitive impairment pursuant to s 5(1) of the Act. Although Dr O’Dea accepts that Mr Maxwell has an ongoing intellectual impairment, his capacity for adaptive functioning means that he does not suffer from a cognitive impairment, as comprehended by s 5(1) of the Act. Dr O’Dea’s finding that Mr Maxwell does not satisfy the definition of cognitive impairment under the Act, does not preclude a finding that he is unfit to be tried. Section 36(1) of the Act provides that a person is taken to be unfit to be tried for an offence if the person, because the person has a mental health impairment or cognitive impairment, or both, or for any reason, cannot do one or more of the things listed in ss 36(1)(a)–(i) of the Act.

Dr O’Dea acknowledged that the accused’s mental state and intellectual functioning would likely impact his ability to understand the substantial effect of any evidence that may be given in support of the prosecution and that it was likely to impact on his ability to instruct his legal representatives. However, Dr O’Dea concluded that with adequate and appropriate support by the Court, Mr Maxwell would be able to follow the proceedings; understand the substantial effect of any evidence that may be given in the trial; and instruct his legal representatives with a view to making an adequate defence to the charge.

In terms of the accommodation that could be made to assist Mr Maxwell, it was suggested that regular breaks could be taken to afford him regular opportunities to confer with his legal representatives. It is unclear to me as to the regularity of the breaks that would be required. The possibility that half-hourly or hourly breaks could be afforded to Mr Maxwell, giving him sufficient time to confer with his legal representatives, fails to appreciate the practical difficulties that would be caused in the trial. There are five other accused. Each accused is in custody. If Mr Maxwell were afforded the opportunity on a regular basis to confer with his lawyers, would this happen in the courtroom, requiring the other five accused to be taken back to the cells separately? Would it require Mr Maxwell to be removed from the courtroom and placed into a cell, while the other accused remained in the court waiting? Is it practical to have the jury sent back to the jury room every half-hour or hour to accommodate Mr Maxwell?

I am not persuaded that sufficient accommodations could be made by the Court to ameliorate the difficulties that would be faced by Mr Maxwell.

I turn to consider the s 36 criteria. I am satisfied, on a balance of probabilities, that Mr Maxwell does not meet the following minimum standards required to be tried.

Although I am satisfied that Mr Maxwell is able to understand that the offence of murder relates to the unlawful killing of another, I am not satisfied that he has the capacity to understand the two bases of liability relied upon by the prosecution, namely joint criminal enterprise and extended joint criminal enterprise. While the material does not establish that his legal representatives explained the concepts to him in an effort to ascertain whether he had the capacity to understand them, it is clear from the expert evidence of Dr Ellis and Dr Lennings that Mr Maxwell’s conceptual reasoning and his ability to understand more complex issues is limited. While I am satisfied that Mr Maxwell has a rudimentary understanding of the offence of murder, I am not satisfied he has an understanding of the bases of liability upon which he is said to be guilty of murder: see s 36(1)(a) of the Act.

I am satisfied that Mr Maxwell is able to plead to the charge and exercise the right to challenge jurors. Although some concern has been expressed about the potential to change his mind based on social pressures or frustrations, Mr Maxwell does understand the difference between a plea of guilty and plea of not guilty: see ss 36(1)(b) and (c) of the Act.

I am satisfied that Mr Maxwell has a basic understanding of the roles of persons in court and, in general terms, understands the nature of the proceedings as an enquiry into whether he committed the offence with which he is charged.

I am not satisfied that Mr Maxwell can follow the course of the proceedings so as to understand what is going on in a general sense, nor does he have the capacity to understand the substantial effect of any evidence given against him: see ss 36(1)(e) and (f) of the Act. Although the concept of evidence at trial was explained to Mr Maxwell, he could not recount the concept, other than providing a rudimentary response that evidence related to things such as “photographs”.

Mr Maxwell’s cognitive impairment affects his ability to follow the course of the proceedings so as to understand what is going on in a general sense. His cognitive difficulties would be exacerbated by reason of the symptoms of his mental illness. Although he was not suffering from psychosis at the time of the proceedings before me, there is undoubtedly a history of psychosis, the symptoms of which can be triggered or exacerbated by stress.

The combination of impaired executive functioning, memory problems, difficulty shifting his focus of attention from one thing to another, together with his mental health impairment, impair his capacity to follow the proceedings and understand what is going on in a general sense. It also impairs his ability to understand the substantial effect of the evidence against him.

I will address ss 36(1)(g)–(i) of the Act together as there is a great deal of overlap. I am satisfied that Mr Maxwell’s capacity to make a defence, instruct his legal representatives so as to mount a defence and provide his account of the facts, and decide what defence he will rely upon, is impaired by reason of his mental health and cognitive impairments.

Although the material reveals that Mr Maxwell has given a consistent, albeit rudimentary, account as to his knowledge and participation, his difficulties in following the course of the proceedings and understanding the substantial effect of any evidence given against him, will, in my view, necessarily impede his capacity to make a defence and make that decision known to his legal representatives. It will also impede his capacity to instruct his legal representatives and, importantly, provide his version of the facts to the Court if necessary.

In concluding that Mr Maxwell is unfit to be tried, I have not taken into account any suggestion that he suffers from deafness. The evidence does not satisfy me that he has a hearing impairment.

Section 47 relevantly provides:

Dr Ellis and Dr Lennings agree that the accused will likely remain unfit over the ensuing 12 months. In light of his cognitive impairment, that finding is unsurprising.

Dr Ellis was of the opinion that the accused did not meet the elements of the test for fitness under the Act and is unfit to be tried. The accused’s performance at his review appeared similar to the observations of Dr Lennings in 2022, when he was taking his antipsychotic medication. The effect of any psychotic symptoms at this point, was found by Dr Ellis to be minimal, and the majority of his deficits related to his cognitive impairment. If the accused remains off his medication, Dr Ellis opines that he might deteriorate further, and his cognitive deficits are unlikely to change within 12 months. Dr Ellis suggested that a more fulsome clinical review might identify some areas for improvement however, on balance, he is not likely to achieve positive change within this timeframe. Dr Lennings agrees that it is unlikely that Mr Maxwell will improve over 12 months.

Accordingly, I make the following findings and orders.

The Court finds that:

The Court orders that: