R v Ey - [2011] SASC 145

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v EY
[2011] SASC 145
Judgment of The Honourable Justice Sulan
16 September 2011
CRIMINAL LAW - PROCEDURE - FITNESS TO PLEAD OR BE TRIED - DETERMINATION OF ISSUES
Defendant charged with manslaughter - alleged offending involved defendant giving birth to infant in family home - infant left outside on neighbour's premises exposed to elements - whether defendant fit to stand trial - whether capable of instructing lawyers - consideration of expert evidence.
Held: Application refused. Defendant is fit to plead.
Criminal Law Consolidation Act 1935 (SA) s 269H, s 269I, referred to.
R v Stevens (2010) 107 SASR 456; R v Presser [1958] VR 45, applied.
R v Abdulla (2005) 93 SASR 208; Kesavarajah v The Queen (1980) 181 CLR 230; Ngatayi v The Queen (1980) 147 CLR 1, considered.

R v EY
[2011] SASC 145
Criminal: Application

SULAN J: This is an application by the defendant, Lara Daphne Ey, for a finding to be recorded, pursuant to section 269H of the Criminal Law Consolidation Act 1935 (SA) that she is mentally unfit to stand trial.
The defendant was charged with one count of manslaughter and one count of criminal neglect. On 14 June 2011 the Director entered a nolle prosequi in relation to the second count on the information. The particulars of the first count are that on 7 July 2008 the defendant unlawfully caused the death of an infant born on 6 July or 7 July 2008.
The background of the alleged offending is that the defendant gave birth to a live male infant either late on 6 July or early on 7 July 2008. She gave birth to the infant in the toilet of the family home that she shares with her mother, father, grandfather and younger brother. No other family members were alerted to the fact that she was giving birth, or had given birth. Following the birth, and having cleaned up the area, she proceeded to wrap the infant, umbilical cord and placenta in newspaper. She then carried the infant wrapped in the newspaper outside, where she deposited him on the side of the driveway to the neighbour’s premises. At 7.55am on 7 July, the neighbour, David Ellis, discovered the body of the deceased infant lying on gravel alongside the fence to his premises. The infant was lying on top of wet newspaper but his body was uncovered and exposed to the elements. The umbilical cord and placenta were still attached.
Section 269H of the Criminal Law Consolidation Act provides:
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 to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors);…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ey

Details

AGLC: R v Ey [2011] SASC 145
Case: [2011] SASC 145
Decision Date: 16 September 2011

CaseChat Overview and Summary

The case of R v Ey involved a defendant charged with manslaughter following the death of an infant she gave birth to in her family home, which was subsequently left outside on a neighbour's premises. The central issue before the court was whether the defendant was fit to stand trial and capable of instructing her legal representatives. This determination hinged on the evaluation of expert evidence regarding the defendant's cognitive abilities and her understanding of the legal proceedings.

The court considered the evidence from various psychologists, including Dr Robyn Young, who diagnosed the defendant with mild mental retardation, and Mr Balfour and Mr Ireland, who provided differing opinions on the defendant's ability to comprehend and follow the trial proceedings. Dr Young's assessment indicated that the defendant's cognitive capacity might limit her understanding of the trial's nature and content, while Mr Balfour and Mr Ireland believed that the defendant could follow the evidence and course of proceedings to some extent, despite her low intelligence.

After evaluating the expert evidence and the testimonies, the court concluded that the defendant was capable of understanding and responding rationally to the charges against her and could exercise procedural rights, albeit with some support. The court found that the defendant's low intelligence would necessitate allowances during the trial, such as regular adjournments and extended time for instruction, but did not deem her unfit to stand trial or incapable of providing meaningful instructions to her legal team.

The court's final orders were that the defendant was fit to stand trial and capable of instructing her legal representatives, subject to the aforementioned allowances to accommodate her cognitive limitations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I am satisfied each witness was honest and did their best to recall accurately their observations. I consider the evidence of Mrs Ey was of limited assistance. It appears that the defendant did not communicate with her mother to any great degree. Their level of communication was basic. In my view, Mrs Ey was over-protective of her daughter and her observations of her daughter were somewhat affected by their relationship as mother and daughter. I consider the defendant has skills and is able to comprehend at a greater level than her mother was prepared to accept.Evidence of Dr Robyn Young Dr Young is a Psychologist who has, among other qualifications, a Graduate Diploma in Psychological Practice, and an Honours Degree and PhD in Psychology. The defendant was referred to Dr Young by Mr Richard Balfour as a case of suspected autism. Whilst Dr Young observed some autistic behaviour she did not consider it sufficient for a diagnosis of autism to be made. She diagnosed the defendant with mental retardation. She made this assessment using the Wechsler Adult Intelligence Scale (WAIS), determining the defendant’s IQ to range between 60 and 62 placing her in the mild retardation range. Using the WAIS, an average IQ is 100, with a standard deviation of 15. Dr Young explained that the majority of the population, being 50% or thereabouts, would score between 85 and 115. An IQ which is below 70 would classify someone as having an intellectual disability. She noted that whilst there exists severe and profound intellectual disabilities, the defendant’s would be classified as mild. Dr Young gave evidence that although an individual’s IQ and ability to process information or to think abstractly would not waiver, it is nevertheless possible for them to be taught and educated. Dr Young believes the defendant to be educable, but does not have the intuition or the insight that a person with a higher intellect would have. She gave evidence that one of the facets of the defendant’s behaviour was the tendency to acquiesce or give positive ‘yes’ responses when asked questions. She considered that this characteristic could be exhibited in the courtroom, making her vulnerable to suggestions. She considers this characteristic to be common in people with intellectual disabilities who seek to cover that disability in order to camouflage that they are unable to understand something. She regards her memory as being distorted in respect of the incident in question, to the point that she does not consider the defendant to know where the truth lies. She believes that the defendant does not have the requisite intelligence to lie manipulatively or maliciously. In assessing the defendant, Dr Young used the MacArthur Competence Assessment Tool. Dr Young says she used this tool as a more formal structure in which to interview the defendant about her ability to instruct and operate within a courtroom. Dr Young explained that the data obtained showed, in her opinion, that the defendant was able to think and reason about the legal system in a manner in which she was previously unable to do. She considers that the defendant now has a reasonable idea about the role of a judge, jury and procedures. She did, however, express concern as to her appreciation of her own trial, and whether she would be able to follow proceedings and various procedures, such as being able to challenge a juror. In her report, Dr Young considers that the defendant’s cognitive capacity would limit her ability to understand the nature of the trial, its content and her procedural rights. She is hesitant about the defendant’s ability to convey information to her lawyer, and the necessity to instruct in order for her to receive the best outcome.

Decision

Reasons for decision

I have applied the test as enumerated in Presser and considered by the High Court in Kesavarajah and in Ngatayi v The Queen.[6] [6] (1980) 147 CLR 1 at 8. Conclusion I have had regard to the evidence of all the non-expert and expert witnesses and all relevant reports. It is not in contention that the defendant would not be able to meet the criteria enumerated under section 269H(a) and 269H(b). Dr Young, Mr Balfour and Mr Ireland all agree that the defendant would be able to understand or respond rationally to the charge or the allegations on which the charge is based, and would be able to exercise procedural rights, notwithstanding that support would be needed. I am satisfied that the defendant is able to understand and respond nationally to the charge, and is able to give instructions in respect of her procedural rights. Dr Young differs from that of Mr Balfour and Mr Ireland in respect of Ms Ey’s ability to understand the nature of the proceedings and whether Ms Ey is able to follow the evidence. Dr Young places emphasis on the defendant’s IQ and the MacArthur Competence Assessment Tool, an American test to stand trial. I conclude that the American test is of limited value in Australia. It is unclear what the test of fitness to plead is in America. In assessing the answers given by the defendant to the questions, it appears to me that she has an understanding of the nature of the proceedings and would, within her limited ability, be able to follow the evidence and course of proceedings. I prefer the opinions of Mr Balfour and Mr Ireland. I accept that the defendant is of very low intelligence. I understand that, at times, it may be difficult to obtain clear instructions from her. This is not something unique for criminal defence lawyers. In considering the case against the defendant, the Court will have regard to her low intelligence. Nevertheless, I am not satisfied that she cannot instruct her solicitors and counsel in a meaningful way. It may be that allowance will have to be made during the trial to enable counsel to obtain instructions. Further, it may be necessary to adjourn at regular intervals as the defendant’s ability to concentrate for long periods is impeded. I am not satisfied, on the balance of probabilities, that the defendant would be unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings. Counsel for the defendant placed much emphasis on the inconsistencies between the historical accounts taken by each psychologist during their clinical interviews with the defendant. I have had regard to these varying accounts in relation to the defendant’s social life, academia and details of the offending. I accept the opinion of Mr Balfour that, notwithstanding certain inconsistencies, the defendant appreciates that she must answer questions to the best of her ability. Further that the problem with her accounts does not stem from a lack of capacity to answer questions, but rather her motivations for doing so. I also accept the opinion of Mr Ireland that, although capable of instruction as to the actual circumstances of the offending, it is dependent upon the defendant’s motivation to do so. In his opinion, the defendant has no memory disorder, but may motivationally distort. He did not believe that this made her incapable of recounting her story to her lawyers. I agree with his observations.

Ratio Decidendi

Legal Principle Established

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