30 Nov. 45

THE PRESIDENT: And to say, "I should have been able to make a better defense if I had been able to remember what took place at the time."

SIR DAVID MAXWELL-FYFE: Yes, My Lord. If I might compare a very simple case within my experience, and I am sure within the experience of members of the Court where this has arisen scores of times in English courts, after a motor accident when a man is charged with manslaughter or doing grievous bodily harm, he is often in the position of saying, "Because of the accident my memory is not good or fails as to the acts charged." That should not, and no one has ever suggested that it could, be a matter of relief from criminal responsibility. I hope that the Tribunal will not think that I have occupied too much of their time, but I thought it was useful just to present the matter on the basis of the English law as I understand it.

THE TRIBUNAL (Mr. Biddle): Sir David, so I can understand you, one of the tests under the Pritchard case is whether or not the defendant can make a proper defense, is it not?

SIR DAVID MAXWELL-FYFE: With the greatest respect, you have got to read that with the preceding words, which limit it. They say, "Whether a prisoner was of sufficient intellect to comprehend the course of the proceedings of the trial so as to make a proper defense."

THE TRIBUNAL: (Mr. Biddle): And would you interpret that to mean that this defendant could make a proper defense under the procedure of the trial if you also find as a fact, which you, I think, do not dispute, and which you quoted in fact, that although not insane--now I quote that he did not understand, or rather:

"His amnesia does not prevent him completely from under standing what is going on around him, but it will interfere with his ability to conduct his defense, and understand details of the past…"

You don't think that is inconsistent with that finding?

SIR DAVID MAXWELL-FYFE: No, I am submitting it is not. It is part of his defense, and it may well be, "I don't remember anything about that at all." And he could actually add to that, ' From my general behavior or from other acts which I undoubtedly have done, it is extremely unlikely that I should do it." That is the defense which is left to him. And he must take that defense. That is my submission.

THE TRIBUNAL (Mr. Biddle): So even if we assume, for the purpose of argument, that his amnesia is complete, and that he remembers nothing that occurred before the indictment though now understanding the proceedings, you think he should be tried?