Norris v The King - [2023] SASCA 24

Supreme Court of South Australia
(Court of Appeal: Criminal)
NORRIS v THE KING
[2023] SASCA 24
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)
16 March 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - EVIDENCE
CRIMINAL LAW - PROCEDURE - FITNESS TO PLEAD OR BE TRIED - DETERMINATION OF ISSUES
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
This is an appeal against conviction.
Following a trial without a jury, the appellant was found guilty of two counts of aggravated indecent assault, contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). Both counts were aggravated by reason that the complainant was under the age of 14 years at the time of the offending.
There was an earlier trial before a different judge on the question of the appellant’s mental fitness to stand trial pursuant to s 269H of the CLCA. The Judge found the appellant was not unfit to stand trial.
The appellant appeals against his conviction on the following grounds:
1. The Judge erred in finding that the appellant was not unfit to stand trial (Ground 1).
2.The trial Judge made critical errors of fact in finding the appellant guilty of the offences (Ground 2).

3. The trial Judge erred in failing to provide adequate reasons for his verdicts (Ground 3).
Permission to appeal on Ground 1 was sought pursuant to ss 269Y(3) and (4)(b) of the CLCA.
Held, per the Court, granting permission to appeal with respect to all grounds but dismissing the appeal:
1.The presumption of mental fitness to stand trial under s 269I of the CLCA has not been displaced. Ultimately, the question of whether an accused person is fit to stand trial is a legal question which must be considered in the context of s 269H of the CLCA and having regard to the whole of the facts and circumstances. While the appellant was at a disadvantage under cross-examination by reason of his mild intellectual disability, the evidence does not establish, on the balance of probabilities, that the appellant was unfit to stand trial.
2.The trial Judge did not make any factual errors in his findings, and they were open on the evidence.

3. The trial Judge’s reasons were not inadequate.
Criminal Law Consolidation Act 1935 (SA) ss 56, 56(2), 269H, 269H(b), 269H(c), 269I 269Y(3), 269Y(4)(b), 269Y(5), 269Y(5)(c), 269Y(5)(d); Criminal Procedure Act 1921 (SA) s 157; Evidence Act 1929 (SA) s 25; Magistrates Court Act 1991 (SA) s 42(5), referred to.
Boyle (a Pseudonym) v The Queen [2022] SASCA 50; R v Hayles (2018) 131 SASR 186; R v Norris [2020] SADC 11; R v W, R (2019) 133 SASR 331, discussed.
DL v The Queen (2018) 266 CLR 1; Douglass v The Queen (2012) 86 ALJR 1086; Hardwood v Police (1998) 71 SASR 300; Kesavarajah v The Queen (1994) 181 CLR 230; Ngatayi v The Queen (1980) 147 CLR 1; Papps v Police (2000) 77 SASR 210; R v Presser [1958] VR 45; R v Rendell (2018) 131 SASR 201; R v Ricciardi (2017) 128 SASR 571; R v Stevens (2010) 107 SASR 456; Taylor v Hayes (1990) 53 SASR 282, considered.

NORRIS v THE KING
[2023] SASCA 24
Court of Appeal – Criminal: Livesey P, Doyle and David JJA

THE COURT: Following a trial without a jury, the appellant was found guilty of two counts of aggravated indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). There was an earlier trial before a different judge on the question of the appellant’s mental fitness to stand trial pursuant to s 269H of the CLCA (‘the fitness trial’). The Judge found the appellant was not unfit to stand trial.
The appellant appeals against his conviction on the following grounds:
1.   The Judge erred in finding that the appellant was not unfit to stand trial (Ground 1).
2.   The trial Judge made critical errors of fact in finding the appellant guilty of the offences (Ground 2).
3.   The trial Judge erred in failing to provide adequate reasons for his verdicts (Ground 3).
Permission to appeal on Ground 1 was sought pursuant to ss 269Y(3) and (4)(b) of the CLCA. Section 269Y(3) provides that an ‘appeal lies with the permission of the court of trial or the appropriate appellate court against a key decision by the court of trial.’ A ‘key decision’ is defined in s 269Y(4)(b) to include ‘a decision that the defendant is, or is not, mentally unfit to stand trial’.
Section 269Y(5) provides that the appellate court may in addition to setting aside, varying or reversing a decision of the court of trial make any finding or exercise any power that could have been made or exercised by the court of trial, and make any ancillary orders and directions.[1]
[1] Criminal Law Consolidation Act 1935 (SA) ss 269(Y)(5)(c) and (d).
An appeal pursuant to s 269Y(3) is not constrained in the same way as is an appeal pursuant to s 157 of the Criminal Procedure Act1921 (SA). Whilst both are appeals by way of ‘re-hearing’, the powers vested in this Court pursuant to s 269Y(5) are similar to those which govern appeals pursuant to s 42(5) of the Magistrates Court Act 1991 (SA).[2] Accordingly, when considering whether the Judge erred in finding that the appellant was not unfit to stand trial, it is necessary for this Court to reconsider the materials and draw its own inferences and conclusions, whilst making due allowance for the fact of not having seen nor heard from witnesses.[3]
[2] R v Stevens (2010) 107 SASR 456 at [17]-[20] per Sulan J.
[3] Taylor v Hayes (1990) 53 SASR 282.
The question of permission to appeal with respect to all grounds was referred to this Court for consideration.
Background
Between 1 December 2014 and 31 January 2015, the appellant took his great‑niece (‘TJK’) and her two brothers (‘BK’ and ‘KK’) to collect bottles and cans near Warooka in the Yorke Peninsula. While BK and KK were collecting cans and bottles in the nearby scrub, the appellant allegedly exposed his penis to TJK and forced her to touch it (Count 1). He then pulled down her pants and rubbed her vagina with his hand (Count 2). At the time, TJK was eight years old. Both offences were aggravated by reason that TJK was under the age of 14 years at the time of the offence.[4]
[4] Criminal Law Consolidation Act 1935 (SA) s 56(2).
The appellant was arrested on 20 February 2018 and, in a record of interview with police conducted on that same day, denied the offending.
Fitness to stand trial
The Judge commenced an investigation under Part 8A, Division 3 of the CLCA as to the appellant’s mental fitness to stand trial. Three medical expert witnesses provided reports and were called to give evidence: Dr Catherine Crouch for the appellant; and Dr Oliver Burgess and Dr Emma Fitzgerald for the prosecution. The prosecution also tendered a copy of the appellant’s record of interview.
It was common ground amongst all expert witnesses that the appellant had a mild intellectual disability which presented difficulties with his capacity to process and retain information, and that he had a concrete thinking style. The experts also agreed that with breaks, advice and support from his counsel, he was able to understand, or respond rationally to the charges or allegations on which the charges are based, and was capable of exercising his procedural rights. The experts also agreed that if the appellant were to give evidence, during his evidence in chief, he would be able to understand the nature of the proceedings and follow the evidence and the course of the proceedings with various accommodations. The expert witnesses agreed that the appellant would be at a considerable disadvantage in being able to withstand cross-examination because he was, in effect, prone to suggestibility by reason of his mild intellectual disability. The expert witnesses considered that he would need breaks during cross-examination to consult with his counsel and to have topics and questions clarified for him so that he could give reliable evidence.
During the fitness trial, the appellant submitted that absent an arrangement that he be able to consult with his counsel during cross-examination, which was under normal rules not permitted, he was not fit to stand trial.
The appellant’s complaint on appeal is confined to whether the Judge erred in finding that the appellant was not unfit to stand trial. More specifically, the appellant complains that the Judge’s finding was erroneous as:
·the expert witnesses were not aware, as a matter of procedure, that a witness could not discuss evidence with their counsel during cross‑examination;
·Dr Fitzgerald and Dr Crouch expressed the opinion that due to the appellant’s difficulties with his memory and suggestibility, absent an arrangement where he could consult with his counsel during cross‑examination, he was unfit to stand trial; and
·in finding that the appellant was fit to stand trial, the Judge erroneously reasoned that the appellant’s counsel could lead evidence of his intellectual capacity to explain any inaccurate answers as a product of his low intelligence.
Relevant legislative provisions
Section 269I provides that an accused person’s mental fitness to stand trial is to be presumed unless it is established, on an investigation under Part 8A, Division 3 of the CLCA, that person is mentally unfit to stand trial.
Section 269H provides:
269H—Mental unfitness to stand trial
A person is mentally unfit to stand trial on a charge of an offence if the person’s mental processes are so disordered or impaired that the person is—
(a)unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based; or
(b)unable to exercise (or give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or
(c)unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.
That section enshrines the common law test of fitness to stand trial as outlined by Smith J in R v Presser[5] and subsequently approved by the High Court in Kesavarajah v The Queen[6] and Ngatayi v The Queen.[7] The purpose of the common law test was to ensure that a trial would not be rendered unfair by reason of a defendant’s inability to participate in the trial in an appropriate manner.
[5] [1958] VR 45.
[6] (1994) 181 CLR 230.
[7] (1980) 147 CLR 1.
In R v Hayles,[8] Stanley J set out and discussed the principles applicable to s 269H as follows:[9]
[8] (2018) 131 SASR 186.
[9] R v Hayles (2018) 131 SASR 186 at [30]-[31] per Stanley J.
In R v Abdulla, Besanko J concluded that the term “mental processes” in the chapeau to s 269H should be given a wide meaning and includes the ability to receive information, process it and respond to it. If that ability or function of the mind is impaired or disordered, then the accused's mental processes are disordered or impaired within the meaning of s 269H. This conclusion was cited with approval by Sulan J, with whom Nyland and Layton JJ agreed, in R v Stevens Sulan J went on to observe, however, that it is not uncommon for accused persons to have low intelligence, lack of insight into their behaviour and low cognitive skills. That does not mean that they are unfit to stand trial.
From this analysis of the authorities, as s 269H enshrines the common law test, the following principles relevant to the disposition of this appeal can be distilled:
(i)the overarching concern of the common law and s 269H is to prescribe the minimum requirements for a fair trial where there is an issue as to whether the accused is unfit to stand trial by reason of some mental impairment. The purpose of s 269H is to ensure that a trial is not rendered unfair because of the inability of the accused to participate in the trial in an appropriate manner;
(ii)the test is to be applied in a reasonable commonsense fashion;
(iii)the minimum requirements required for an accused person to be fit to stand trial may not be very difficult to meet;
(iv)in order to be fit to stand trial, an accused must be able to follow the course of the proceedings and the evidence so as to understand what is going on in a general sense, but it is not necessary that he has a complete understanding or that he is capable of following the complexities of legal argument or some difficult to understand aspect of the evidence;
(v)the fact that an accused suffers from a mental disorder or impairment which reduces his capacity to follow the evidence or the course of the proceedings does not render him unfit to stand trial. The test of unfitness requires that the accused is entirely unable to follow the evidence or the course of the proceedings;
(vi)in assessing whether an accused is unfit to stand trial, it is proper for the court to weigh the complexity of the charge faced by the accused and whether the accused is represented by counsel; and
(vii)whether the accused is unfit to stand trial, where his ability to receive information, process it and respond to it is impaired, depends on whether that impairment is such as to deprive the accused of the capacity to follow the evidence or the course of the proceedings in the manner described above.
(citations omitted)
In R v W, R,[10] after restating the abovementioned principles, Stanley J said:[11]
Ultimately the test is whether the accused is so mentally impaired that he cannot obtain a fair trial. For that purpose, the accused’s mental processes must be so disordered and impaired that he or she is wholly unable to satisfy the test in s 269H.
[10] (2019) 133 SASR 331.
[11] R v W,R (2019) 133 SASR 331 at [31] per Stanley J.
In the present case, the appellant contends that the expert witnesses all gave evidence that he was at a significant disadvantage by reason of his intellectual disability, and two experts gave evidence that without various accommodations made for him, the appellant would be unable to participate reliably in cross‑examination. The appellant contends that the proposed accommodations could not be made under the normal rules governing cross-examination. Thus, the appellant contends he had established, on balance, he was either: ‘unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors)’;[12] or ‘unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings’,[13] particularly during cross-examination.
[12] Criminal Law Consolidation Act 1935 (SA) s 269H(b).
[13] Criminal Law Consolidation Act 1935 (SA) s 269H(c).
It is to be accepted that an inability to give evidence will result in an accused person being unfit to stand trial. A person’s ability to give evidence is, of course, fundamental to a fair trial. The appellant contends that irrespective of which limb of s 269H applies, the appellant was unfit to stand trial.
Psychological evidence
We turn to consider the psychological evidence adduced at trial. The appellant called forensic psychiatrist, Dr Crouch. In a report dated 15 July 2019, Dr Crouch expressed the opinion that the appellant was unfit to stand trial. Dr Crouch said that the appellant had a mild intellectual disability and was vulnerable and easily led. She said he had difficulties in understanding the court process, the roles of those involved, and his ‘plea options.’ She said that it did not appear that he would be able to instruct his lawyer or formulate a defence.
Dr Crouch also considered that it was unlikely that the appellant would be able to follow the course of proceedings. She said that his severely impaired working memory and verbal processing meant that there was a limited likelihood that he could adapt and learn in the court environment. On that basis, in her report, Dr Crouch concluded that the appellant was unfit to stand trial.
In evidence, Dr Crouch said that after considering the psychiatric report of Dr Burgess (prepared some months after her report), she now believed that if the court provided suitable arrangements, the appellant was fit to stand trial. Those arrangements were set out in the reports of Dr Fitzgerald and Dr Burgess, discussed later.
Dr Crouch agreed that, on balance, the appellant was able to understand and respond to the charges and, if his procedural rights were explained simply, concretely, and repetitively, he could exercise those rights.
Dr Crouch was asked to assume that: the trial evidence might take a day or a day and a half; the complainant’s evidence is video recorded and the appellant will have an opportunity to watch the recording in advance of the hearing; and there may be some limited evidence from the complainant, other civilians, and police witnesses. After making those assumptions, Dr Crouch was asked whether the appellant could follow the evidence. She considered that, on balance, the appellant would be able to follow the evidence, if presented in that manner.
Dr Crouch was asked to assume that the appellant would have closed questions asked of him during cross-examination, and he would not have the benefit of his counsel being able to explain or summarise the questions. After making those assumptions, Dr Crouch was asked whether the appellant would be ‘able to stand up to cross-examination.’ Dr Crouch said that she believed the appellant would have significant difficulties ‘withstanding’ cross-examination. Dr Crouch agreed that if the questions were limited to simple concrete propositions, with one proposition per question, and assuming that the appellant’s counsel could clarify any potential confusion in re-examination by re-wording the question slightly to ensure his answer was not the result of suggestibility, the appellant could ‘potentially’ withstand cross-examination. To that end, Dr Crouch emphasised the need for clarity and simplicity in the questioning.
Ultimately, the effect of Dr Crouch’s evidence was that the appellant was not unfit to stand trial, so long as his cross-examination was conducted in a particular manner, and there was some latitude given in re-examination.
The prosecution called evidence from Dr Burgess and Dr Fitzgerald.
In a report dated 14 March 2019, Dr Fitzgerald, a neuropsychologist, assessed the appellant against the criteria set out in s 269H of the CLCA. She concluded that he was not unfit to stand trial. However, that finding was qualified by several arrangements that she believed were necessary in order for him to properly understand the evidence and follow the court’s processes.
Dr Fitzgerald observed that the appellant had a significant impairment in verbal comprehension and with his ability to express himself when discussing moderately complex issues. Nonetheless, she concluded that he was able to comprehend the offences he had been charged with and noted that he denied committing those offences. On that basis, Dr Fitzgerald concluded that the appellant understood the charges against him and had the capacity to rationally respond to them.
Dr Fitzgerald also concluded that, with some explanation and guidance, the appellant was able to grasp those basic concepts and procedures likely to occur at a criminal trial. Accordingly, Dr Fitzgerald determined that the appellant was able to comprehend and exercise his procedural rights.

As to the trial process, Dr Fitzgerald said that assuming it was not to be a particularly complex trial, the appellant had a ‘borderline’ capacity to understand the nature of the proceedings and follow the evidence or the course of the proceedings. She expressed the opinion that with various arrangements put in place, the appellant was not unfit to stand trial. Those arrangements were expressed as follows:
1.   Information would need to be presented in short sentences with a brief break between ideas to allow the appellant time to process the information.
2.   Language would need to be simple and concrete and, if the appellant did not understand something at first instance, it would need to be explained in a different way. Care would need to be taken so as to ensure that the appellant did not say he understood what had been said due to a belief that this is what was expected of him.
3.   Due to the appellant’s poor working memory and limited capacity to learn and remember, information presented by witnesses would need to be summarised into its main points and repeated during breaks.
4.   As the appellant was not likely to be able to read and comprehend the witness statements, that information would need to be summarised and simplified by his legal counsel.
5.   Breaks throughout the proceedings may need to be more regular than usual to allow the appellant’s counsel time to provide him with a simplified summary of what had occurred in court.
In evidence, Dr Fitzgerald said that she did not think the appellant ‘would cope with those types of closed questions that might come rapidly and that perhaps are lengthy.’ She also said that he would be ‘significantly disadvantaged’ by not being able to speak with his counsel during cross-examination. Dr Fitzgerald agreed that ‘he wouldn’t be fit to participate in that aspect of the trial.’
Dr Fitzgerald was asked to make the following assumptions: during cross‑examination prosecuting counsel was required to question the appellant in simple terms, with one proposition per question; once answered, counsel could reframe the question to ensure the reliability of his answer; and the appellant’s counsel could clarify matters in re-examination. When assuming those matters, Dr Fitzgerald considered that the appellant would not be wholly unable to withstand cross-examination. Dr Fitzgerald also agreed that there was no risk that the appellant would provide unreliable evidence as to the central allegations of indecent touching because he had consistently denied that unlawful conduct throughout the forensic assessments and during the police interview.
Again, it can be seen that the effect of the evidence of Dr Fitzgerald was that, assuming the appellant was cross-examined in a particular manner, and his counsel was given some latitude in re-examination to clarify his answers for suggestibility, the appellant was not wholly unable to withstand cross-examination.
The prosecution also called evidence from Dr Burgess, a psychiatrist. In his report dated 19 September 2019, he considered whether the appellant was unfit to stand trial against the criteria set out in s 269H of the CLCA. Dr Burgess had regard to the reports prepared by Dr Fitzgerald dated 14 March 2019, and Dr Crouch dated 15 July 2019. Dr Burgess said that the appellant had a concrete thinking style, and experienced difficulties when approaching matters in abstract or hypothetical terms with a tendency to give affirmative answers. Dr Burgess said that the appellant appeared very suggestible and provided contradictory answers at times, depending on how suggestions were put to him. He said that the appellant required questions to be reframed multiple times to ensure he gave reliable answers.
Dr Burgess considered the transcript of the appellant’s record of interview. He said that his answers tended to be a simple ‘yes’ or ‘no’ with very limited elaboration, and it was not clear that he understood all the questions. However, Dr Burgess noted he consistently denied the allegations, and was able to provide, with prompting, a relatively coherent account of his version of events in relation to his denial of the charges.
In his report, Dr Burgess expressed the opinion that the appellant was not unable to respond rationally and consistently to the allegations. Dr Burgess considered that for the appellant to be able to exercise his procedural rights, his counsel needed to take a relatively active stance as the appellant could not be relied on to spontaneously voice concerns or objections. He said that the appellant’s counsel would also need to regularly enquire as to whether he understood the evidence as it unfolded. He would need to summarise the evidence into simple concrete terms avoiding abstract ideas or hypothetical scenarios and ideally (but not necessarily), provide that summary in a pictorial form. Dr Burgess said that with these accommodations, the appellant was likely to be able to exercise his procedural rights.
As to the appellant’s ability to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings, Dr Burgess highlighted the significant deficits in the appellant’s memory and learning, and said that consequently, relevant information would need to be repeated to the appellant as the evidence unfolded, otherwise, the appellant would not be able to retrieve this information. He said that the appellant would also need breaks during the court proceedings to avoid being overwhelmed with information.
Dr Burgess considered that the appellant could be expected to have substantial difficulties with the trial process. However, he expressed the opinion that the appellant was not unfit to stand trial for these offences if the following accommodations were made:
1.Adequate legal representation.
2.Information was presented in short sentences with a break between ideas to allow the appellant time to discuss with his lawyer and process the information.
3.Language was simple and concrete, and concepts were explained in a different way if he did not understand it the first time.
4.Care was taken to ensure that he did not say he understood something because he believed that this was what was expected of him due to his poor working memory and capacity to learn and remember.
5.Information presented by witnesses (and in witness statements) was summarised by his lawyer into its main points and repeated during breaks.
6.There were regular breaks through the proceedings to avoid fatigue and to allow his lawyer time to provide him with a simplified summary of what has occurred in court.
In evidence, Dr Burgess confirmed his opinion that the appellant was not unable to understand or respond rationally to the allegations and, that with support, the appellant was not unable to exercise his procedural rights.
In relation to whether the appellant was unable to follow the evidence or the course of the proceedings, Dr Burgess said that the appellant would require substantial assistance but, overall, he was not unfit to stand trial. Dr Burgess said that while the appellant appeared predisposed to suggestibility, when the central allegations were put to him by police in his interview, and during the forensic assessments, he maintained his denials to the alleged offending.
Dr Burgess was asked to assume that during cross-examination: the appellant would be asked closed questions; and he would be unable to speak with his lawyer or have his lawyer remind him of the evidence or explain the question put to him. After making those assumptions, Dr Burgess was asked whether the appellant would be able to ‘withstand’ cross-examination. Dr Burgess said that the appellant would be able to cope with cross-examination. However, the judge would need to be alive to his general susceptibility to give affirmative answers when confused, and be aware that he may be prone to misunderstanding a question so as to answer it incorrectly. In evidence, Dr Burgess confirmed his opinion that the appellant was not unfit to stand trial.
The Judge’s decision
After setting out the requirements of s 269H of the CLCA, considering the evidence of the three medical practitioners, and addressing various procedural considerations, the Judge found the appellant was not unfit to stand trial, and the presumption of mental fitness had not been displaced.
His Honour noted that the expert witnesses all expressed the view that the appellant was not unable to understand or respond rationally to the charges or the allegations on which the charges were based. They all agreed that the appellant was not unable to understand and exercise his procedural rights at trial so long as they were clearly, simply, and repetitively explained to him by counsel.
His Honour said, correctly, that the expert witnesses all agreed that the appellant’s primary area of disadvantage in any trial would be if he elected to give evidence on oath and was consequently cross-examined. They all agreed that he would be capable of denying the central allegations in cross-examination and that he would not be vulnerable to suggestion on that topic, but that he would have difficulty in answering complex questions or questions involving more than one concept. His Honour noted that the expert witnesses all said that by reason of his mild intellectual disability, the appellant would have difficulty retaining information and may become confused and susceptible to suggestion, or might simply answer in the affirmative as a result of that confusion.
The Judge noted that accordingly the appellant was significantly disadvantaged in terms of his ability to give evidence and withstand cross‑examination. However, his Honour considered that any question put in cross-examination would be unfair if it was not capable of being understood by the appellant and, accordingly, it was within his discretion to require counsel in cross‑examination to proceed in a simple and straightforward manner so that it was understood by the accused.
His Honour concluded:
In the final analysis, bearing all this in mind, I am of the view that the accused is capable of giving evidence in his own defence, although his mild intellectual disability will likely make it a more difficult and less comfortable process than for the average witness. That mild intellectual disability places him at a relative disadvantage to the cross examiner. It does not however, render him unable to understand and respond rationally to the allegations. As to the other criteria set out in s 269H, it is common ground that with breaks, advice and support from his lawyers, he will be able to exercise his procedural rights, understand the nature of the proceedings and follow the evidence and the course of the proceedings
Further, whilst it is wholly a matter for the defence, the accused’s capacities can be explained to a jury by way of medical evidence akin to that called in this investigation, and such evidence will enable any inaccurate answers given for the reasons outlined by the doctors to be explained as such rather than as necessarily damning admissions.
As discussed above, the Judge found the appellant was, on balance, not mentally unfit to stand trial. That finding forms the basis of Ground 1 of this appeal.
Consideration
We are of the view that the evidence does not establish, on the balance of probabilities, that the appellant was unfit to stand trial. The issue of his mental fitness at trial, and on appeal, was confined to whether the appellant’s capacity to participate in cross-examination was so disadvantaged, by reason of his mild intellectual disability, that he was unfit to stand trial.
As discussed above, the ability to give evidence is critical to the right of an accused person to a fair trial. However, for a person to be fit to stand trial it does not follow that they must be able to conduct a skilful defence under cross‑examination. Nor must every aspect of an accused’s evidence be reliable. On the other hand, it is necessary that an accused person has: an understanding of those questions and assertions put to him; a capacity to understand an obligation to tell the truth; and an ability to reliably put a version or account on the central allegations, should they wish to do so, before the trier of fact.
In the present case, it is to be accepted that the appellant would potentially be at a disadvantage under cross-examination by reason of his mild intellectual disability. He could be easily confused and prone to suggestibility. He struggled with abstract or hypothetical concepts. He could not easily retain information. According to the expert witnesses, questions would need to be put in simple and clear terms with one proposition or concept per question.
Under s 25 of the Evidence Act 1929 (SA) (the ‘Evidence Act’) the court has the power to disallow inappropriate questions. Thus, the trial Judge could, to some extent, control the form and content of questions asked in cross-examination to ameliorate the disadvantages faced by the appellant.
Further, while the expert witnesses agreed that the trier of fact would need to be alive to the appellant’s suggestibility and that he may be prone to giving an affirmative answer out of confusion rather than because he agreed with a proposition, it was not the evidence that there was a risk that the appellant would provide unreliable evidence as to the central allegations. Indeed, during his police interview the appellant denied the allegations and provided a clear account as to the central features of the prosecution case. There was no suggestion that the appellant did not have the capacity to provide a consistent, reliable account in response to the core allegations made against him.
It is also relevant that any trial would not involve complex factual or legal matters. The charges related to one occasion involving two alleged incidents of indecent touching which occurred on a specified day, that being the day the appellant’s mother had a fall. The trial was likely to be short, lasting less than two days, and the appellant was represented by experienced counsel.
While Dr Crouch said that the appellant would have significant difficulties ‘withstanding’ cross-examination if he could not have breaks to consult with his counsel, Dr Crouch ultimately conceded that if questions were limited to simple concrete propositions, with one concept per question, and the appellant’s counsel could clarify any matters of confusion in re-examination (for example, by re‑wording the question slightly to ensure his answer was not the result of suggestibility), he could ‘potentially’ withstand cross-examination.
Ultimately, the question of whether an accused person is fit to stand trial is a legal question which must be considered having regard to the whole of the facts and circumstances. Although due regard must be given to the expert evidence, and their opinions must not be arbitrarily dismissed, the Judge was not obliged to simply accept the opinion of one or all the expert witnesses. In any event, in this matter a close review of the expert evidence does not support a finding that the appellant was, on balance, unfit to stand trial. Ultimately, no expert witness gave evidence that the appellant was unfit to stand trial provided the court made appropriate accommodation for his mild intellectual disability, including ensuring that prosecuting counsel asked simple questions of the appellant during cross‑examination, and his counsel could clarify any potential confusion in re‑examination.
Having considered the expert evidence, and the whole of the facts and circumstances, and having had regard to the Judge’s reasons and conclusions, we are satisfied that the appellant was not unfit to stand trial. The presumption of mental fitness has not been displaced. As discussed above, the trial was a relatively short one. The appellant was legally represented by experienced counsel. The appellant was able to give reliable evidence as to the central features of the allegations. He had provided a record of interview during which he had given a clear account denying the allegations. The trial Judge could, to some extent, control the content and form of the questions put in cross-examination under s 25 of the Evidence Act. Notwithstanding that the appellant was vulnerable to suggestibility, any confusion or opacity in his answers could be clarified in re-examination, and the Judge was aware that may need to occur and amenable to appropriate latitude in that regard.
Applying the test in s 269H in a ‘reasonable and common sense fashion’[14] and bearing in mind that the minimum requirements for an accused person to be fit to stand trial may not be very difficult to meet, we are not persuaded that the appellant was mentally unfit to stand trial.
[14] R v Hayles (2018) 131 SASR 186 at [31] per Stanley J.
We would grant permission, but dismiss this ground of appeal.
The trial
After a finding that the appellant was not unfit to stand trial, the matter proceeded to trial before a different Judge. The prosecution tendered the interview of TJK, and called her to give sworn evidence. She was eight years old at the time of the alleged offence, 11 years old at the time of the interview and 14 years old when giving evidence. The prosecution also adduced oral evidence from the complainant’s younger brother, KK, and tendered the statements of the complainant’s older brother, BK, and her school friend, SK. The appellant’s record of interview with police was also tendered in evidence.
The appellant did not give evidence at trial, nor call any evidence.
The trial Judge found the appellant guilty of both counts of aggravated indecent assault.
The evidence
TJK gave evidence that there was an occasion when the appellant took her and her two brothers to collect cans and bottles. She said that they travelled in his white Ford utility on the Warooka Road at Yorke Peninsula. She said he pulled over near some bushes and he told her brothers to look for cans. He told her to stay at the car, which she did.
TJK said that the appellant opened the rear left hand passenger door of the utility and was standing there. He told her to come to where he was and she did so, thinking he was going to make her clean out the car. He then grabbed her under the armpits and put her in the back seat of the utility and pushed her down onto the back seat, so she was lying down. He told her to pull her pants down and she refused. He pulled his pants down and grabbed her hand and put it on his ‘rude spot.’ She said she called out to her brothers for help, but they did not hear her. She said she let go of her pants and he pulled them down, including her underwear, and he rubbed her ‘rude spot.’
TJK said the boys yelled out for help, at which point they went to look for her brothers and found that they were stuck in a hole.
She said this incident occurred on the day that she was told her great‑grandmother had a fall and was taken to hospital.
KK gave evidence. He was 15 at the time of the trial, and nine years old at the time of the alleged offending. He said that on the day his great-grandmother had a fall, he and his siblings went with the appellant to collect cans and bottles. He said that they travelled in a white utility and stopped on a road outside of Warooka. There, the appellant asked the boys to get out of the car and go and collect bottles and cans. He told TJK to stay behind. They were gone for about ten minutes. He said that they heard TJK yell for help, and they returned to the car whereupon the appellant told them someone had yelled from a nearby house.
KK said when they returned to the car, the appellant was standing beside the utility on the passenger side and TJK was sitting on the edge of the utility’s tailgate. He said that on the day of their great-grandmother’s fall neither he nor BK got stuck in a hole, nor did his shirt get stuck in a fence.

KK said that he thought they had gone on another drive with the appellant, but he did not recall another occasion when they went to look for cans and bottles.
BK did not give oral evidence. His account was tendered as a set of agreed facts as to the evidence he would have given if called at trial. He was ten years old at the time of the alleged offending. He said there was an occasion when his great‑grandmother had a fall, and on that day he, TJK and KK travelled in the appellant’s utility to Hardwicke Bay. He said he went looking for bottles on the beach and his brother KK got stuck in barbed wire. He said he went to help him.
The appellant was arrested on 20 February 2018. On that day he participated in a record of interview during which he denied the offending. He said that he had taken ‘them’ on a ‘bottle run’ a couple of times. He said that he took TJK and her brothers to collect cans, and he thinks this was on the day of his mother’s fall. He said they went to Hardwicke Bay, but he did not think they travelled on the Warooka Road. He was driving a white Ford utility.
The appellant said that the boys got out of the car near some scrub to collect cans while he was filling up the car with diesel. He said that on this occasion he recalls the boys falling in a hole and helping them to get out of the hole. He said that they were always within sight, and they went looking for cans and bottles of their own initiative for pocket money. He did not tell them to go and look for cans and bottles.
There were a series of agreed facts including that the appellant’s mother had a fall at her home on 30 December 2014, and that the appellant owned a white Ford utility in December 2014.
Trial judge’s reasons for verdict
In his reasons for verdict, the trial Judge outlined the evidence in similar terms as above. His Honour set out the legal elements of the offence, and gave himself directions as to the forensic disadvantage suffered by the appellant by reason of the delay between the commission of the offences and the trial. His Honour also referred to, and took into account, the disadvantages suffered by the appellant when answering questions by police in his record of interview by reason of his mild intellectual disability.
The trial Judge considered the purported inconsistencies between the evidence of TJK, and other witnesses. Relevantly, his Honour referred to the inconsistency between TJK’s evidence that her two brothers were stuck in a hole, and the evidence of KK who said that did not occur. It was also noted that BK said nothing on the topic. His Honour concluded that:
any inconsistency is a function of time and different recollections. I accept that on the occasion of the alleged offending, the two boys became stuck in a hole which was described by the complainant.
In so finding, his Honour noted that TJK was specific as to her description of the hole, and the appellant agreed in his record of interview that the boys got stuck in a hole.
The trial Judge also referred to, and considered, the inconsistency between TJK’s evidence that she and the appellant heard the boys yell for help and went to find them stuck in the hole, on the one hand, and, on the other, the evidence of KK that they heard TJK cry for help and returned to the utility to find TJK sitting on the tailgate. His Honour again noted that both TJK and the appellant (in his interview) said they found the two boys stuck in a hole. His Honour concluded:
I consider KK is mistaken in his evidence that the two boys did not get stuck in a hole and that as a consequence he is also mistaken about the position of TJK when he and BK returned to the ute, such that he is more likely than not referring to another occasion.
The trial Judge went on to say that he had scrutinised the complainant’s evidence carefully alongside the other evidence and found that her evidence as to the indecent conduct the subject of the charges, and the circumstances surrounding the alleged offending, to be compelling. His Honour considered TJK to be a credible and reliable witness. After taking into consideration the appellant’s denials in his record of interview and making allowance for his mild intellectual disability and the passage of time between the alleged offending and the trial, his Honour found the appellant guilty of both offences.
On appeal, the appellant relied primarily on the two inconsistencies set out above in his complaints that the trial Judge made ‘critical errors of fact’ and failed to provide adequate reasons. The appellant also referred to other inconsistencies between the evidence of TJK and other witnesses which are of a more peripheral nature.
We turn now to consider those contentions.
Appeal Grounds 2 and 3
In relation to the complaint that the trial Judge made a factual error regarding KK’s evidence that he returned to find TJK seated on the tailgate, the appellant contended that his Honour’s finding that KK ‘was more likely than not referring to another occasion’ was not open on the evidence. The appellant emphasised that KK said there was only one occasion he had driven with him, that being on the day of his great-grandmother’s fall. It is to be immediately noted that the appellant said in his record of interview that he had gone on other ‘bottle runs’ with the children. The evidence to support that finding was in the appellant’s interview.
On the topic of whether her brothers had become stuck in a hole, we consider it was open to the trial Judge to prefer the evidence of TJK to that of KK. The trial Judge referred to the comprehensive nature of her evidence and the detail she provided in describing the hole. There was also support for her account from the appellant’s version in his record of interview. He agreed that the boys got stuck in a hole and yelled out for help.
Aligned with this complaint was the contention that the trial Judge did not provide adequate reasons as to the basis upon which he found TJK to be a ‘compelling’ witness, notwithstanding the inconsistencies between aspects of her evidence and that of KK and BK. The appellant complained that the trial Judge provided inadequate reasons in this regard. It was submitted that it was not sufficient for his Honour to simply refer to the lapse of time since the offending, and the young age of TJK and her brothers; more was required to justify relying on the evidence of TJK given those inconsistencies.
The provision of adequate reasons is necessary to allow an appellate court to discharge its statutory duty on appeal and to enable the parties to understand the basis upon which a decision was made.[15] It is well established that ‘a judge returning a verdict following a trial without a jury is obliged to give reasons sufficient to identify the principles of law applied by the judge and the main factual findings on which the judge relied.’[16] The basis for a decision must be adequately set out so that justice can be seen to be done.[17]
[15] DL v The Queen (2018) 266 CLR 1 at [32] per Kiefel CJ, Keane and Edelman JJ.
[16] DL v The Queen (2018) 266 CLR 1 at [32] per Kiefel CJ, Keane and Edelman JJ, citing Douglass v The Queen (2012) 86 ALJR 1086 at [8] per French CJ, Hayne, Crennan, Kiefel and Bell JJ, cited in R v Rendell (2018) 131 SASR 201 at 87 per Kourakis CJ (with whom Stanley and Bampton JJ agreed).
[17] Harwood v Police (1998) 71 SASR 300 at 305 per Duggan J; Papps v Police (2000) 77 SASR 210 at [24]-[26], [34]-[35] per Gray J.
The adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the trial.[18]
[18] R v Ricciardi (2017) 128 SASR 571; DL v The Queen (2018) 266 CLR 1; R v Rendell (2018) 131 SASR 201.
As this Court recently said in Boyle (a pseudonym) v The Queen:[19]
Reasons are to be read as a whole. It is not necessary for a judge or magistrate to give extensive and elaborate reasons. The content and detail of reasons will vary according to the nature of the specific jurisdiction and jurisdictional powers exercised by each court, as well as the particular matter the subject of the decision. However, an appellate court should not have to guess or speculate as to what a magistrate or judge may or may not have meant, particularly on an important issue. The reasons must be more than a bare statement of the principles of law applied and the findings of fact made; there must be exposed a reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached. Reasons must identify the relevant principles of law, refer to relevant evidence, state the magistrate or judge’s findings upon material questions of fact and provide an explanation for those findings and the ultimate conclusions reached by the magistrate or judge.
A trial magistrate or judge will ordinarily be expected to expose their reasoning on points critical to the contest between the parties. This expectation applies to both evidence and argument. Not every failure to resolve a dispute will render reasons for decision inadequate to justify a verdict.
(citations omitted)
[19] [2022] SASCA 50 at [119]-[120] per Livesey P, Lovell and Bleby JJA.
We are satisfied that the trial Judge provided adequate reasons for his finding that TJK was a credible and reliable witness, and as to why he relied upon her evidence, notwithstanding that some features of her evidence were inconsistent with the evidence of other witnesses. The trial Judge, after reciting the specific detail in TJK’s evidence as to the central allegations and the circumstances surrounding the indecent touching, said that her evidence was compelling. It can be inferred that it was the specific detail in TJK’s evidence which the trial Judge found convincing. The trial Judge also made clear that any inconsistency between TJK and her brothers as to their being stuck in a hole, or in relation to her position on the tailgate, was explained by their young age at the time of the alleged offending and the passage of time. As noted above, the trial Judge also referred to the fact that TJK’s evidence on the topic of the boys being stuck in the hole found support in the appellant’s record of interview. We are satisfied that the basis upon which the trial Judge found TJK to be a credible and reliable witness was open on the evidence and adequately explained in his Honour’s reasons.
The appellant also relied on an inconsistency between the evidence of TJK and SK relating to some discreditable conduct evidence. TJK said that on a day after the alleged offending when she was at the appellant’s house, he pushed her into a room under the pretext that there would be barbie dolls in the room, and BK was outside the door, which remained open. The prosecution tendered agreed facts that SK would have given evidence, if called, that TJK told her the appellant sent the boys to do something and locked her in a room with him. She said TJK was very upset during their conversation. BK did not refer to the topic in his interview with police. In evidence TJK denied she said this to SK.
The trial Judge said that he accepted TJK’s version because she was:
… sure in her denial that she said to SK the door was locked and it is easy to see why SK may be confused about what she was told of this event. I am satisfied that SK has extrapolated what TJK told her about being pushed into a room to the door being closed or locked.
The appellant submitted that those reasons were inadequate. We do not accept that submission. That finding was open to his Honour, and he explained the reason for it. The witnesses were young children at the time of the alleged incident. The inconsistency is of a minor nature, and ultimately the trial Judge did not use the evidence of discreditable conduct in support of the prosecution case.
The trial Judge also set out in some detail the other inconsistencies between TJK’s evidence and that of other witnesses. Those matters were not emphasised during this appeal. They related to an inconsistency between the evidence of TJK and her brothers as to whether they went looking for bottles near Hardwicke Bay or another location on the York Peninsula, and matters relating to events which occurred after the alleged incident adduced as discreditable conduct evidence. The trial Judge ultimately considered those inconsistencies either related to innocuous or peripheral matters, or were explained by TJK and her brothers’ young age at the time of the offending and the passage of time. His Honour concluded that they did not undermine the reliability and credibility of TJK’s evidence. Given the peripheral nature of those inconsistencies, we do not consider more was needed to be said on that topic by the trial Judge.
In reaching a conclusion that the prosecution had proved each offence, the trial Judge expressly stated that he had regard to the appellant’s denials in his record of interview and his intellectual disability and, notwithstanding those matters, he was satisfied beyond reasonable doubt of his guilt.
We are satisfied that the trial Judge did not err in failing to give adequate reasons.
We would grant permission to appeal on Grounds 2 and 3 but dismiss the appeal.
Orders
1.Permission to appeal is granted on Grounds 1, 2 and 3 but the appeal is dismissed.