Details
- AGLC
- Norris v The King [2023] SASCA 24
- Case
- [2023] SASCA 24
- Decision Date
-
CaseChat Overview and Summary
This case concerned an appeal by the appellant against a finding by the trial judge that he was not unfit to stand trial. The appellant faced charges of indecent assault and unlawful sexual touching of his eight-year-old great-niece. The central issue on appeal was whether the trial judge erred in concluding that the appellant, who has a mild intellectual disability, was fit to stand trial, particularly in light of his capacity to withstand cross-examination.
The legal issues before the court were whether the appellant's mild intellectual disability rendered him unfit to stand trial, specifically concerning his ability to participate in cross-examination. The appellant argued that the trial judge's finding of fitness was erroneous because the expert witnesses were not fully aware of procedural limitations regarding a witness consulting counsel during cross-examination, and that two experts had opined he was unfit absent such consultation. The appellant also contended that the judge erroneously reasoned that his counsel could lead evidence of his intellectual capacity to explain any inaccurate answers.
The Court of Appeal considered the expert evidence, which generally agreed that the appellant had a mild intellectual disability, presenting difficulties with processing information and a tendency towards suggestibility. While experts agreed he could understand the charges and exercise procedural rights with support, they noted significant disadvantages in withstanding cross-examination. However, the Court found that fitness to stand trial does not require a skilful defence under cross-examination, nor that every aspect of evidence be reliable. Crucially, the Court held that the appellant possessed the capacity to understand questions, an obligation to tell the truth, and an ability to reliably present his version of events. The Court also noted the trial judge's power under s 25 of the *Evidence Act 1929* (SA) to disallow inappropriate questions and that the trial itself was unlikely to involve complex matters. The Court concluded that the evidence did not establish, on the balance of probabilities, that the appellant was unfit to stand trial.
The Court of Appeal allowed the appeal, finding that the evidence did not establish, on the balance of probabilities, that the appellant was unfit to stand trial.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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
Evidence
Evidence Before The Court
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.
Decision
Reasons for decision
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 proceedingsFurther, 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.
Ratio Decidendi
Legal Principle Established
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.