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); or
(c)unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.
Pursuant to section 269I, a person is presumed to be mentally fit to stand trial unless it is established to the contrary, following an investigation under Part 8A. A judge must be satisfied on the balance of probabilities that a defendant is mentally unfit to stand trial before making a finding to that effect.[1]
[1] R v Stevens (2010) 107 SASR 456.
Evidence of Mrs Heather Ey
The defendant resides with her mother, father, grandfather and younger brother. Mrs Ey, the defendant’s mother, gave evidence about the defendant’s schooling life.
Upon commencing primary school the defendant was part of a program at the Women’s and Children’s Hospital aimed at improving speech and coordination. She was also involved in a Learning Assistance Program until year 3. She attended Gepps Cross Girls High School until she was half way through year 12. Mrs Ey recalled that although the defendant did not repeat any years at high school she failed a number of subjects and only just passed others. She currently attends Marden Senior College where she undertakes four year 12 subjects.
Mrs Ey gave evidence that her daughter plays netball and understands the rules. She is able to use the computer to play games, and access Facebook. The defendant uses her mobile phone both to talk to her friends, and to send and receive text messages. She receives a disability support pension from Centrelink. She has a bank account and card with which she withdraws money; she is responsible for how much she spends.
In cross-examination Mrs Ey explained her concern for the defendant’s ability to cope with her schooling. She acknowledged that although the defendant manages her own money, she is not able to budget. She is of the view that the defendant would struggle to buy, for example, a list of more than 4 items on a grocery list. Further, she expressed concern at the defendant having the requisite skills to care for young babies in a child care centre. The defendant is able to use public transport, and is able to view bus timetables online to determine which bus to catch.
Mrs Ey was cross-examined about her communication with the defendant in relation to the night of the relevant incident. She stated that the defendant would not understand conception, and what, physically, is necessary to happen for one to get pregnant. Mrs Ey was asked her opinion as to the defendant’s understanding of the current proceedings. She said that the defendant has said to her that the court is seeing if she is fit to stand trial. Mrs Ey is unsure whether the defendant fully comprehends this or is merely repeating what she has heard.
Evidence of Ms Stacey Bowley
Ms Bowley was formerly employed as a group leader at the ABC Learning Centre at Campbelltown. She has a Bachelor of Early Childhood Education, and has worked in childcare for approximately five years. Ms Bowley was employed at the Centre when the defendant commenced a traineeship there. The traineeship gives individuals the opportunity to undertake studies to obtain a Certificate III in childcare, combining practical experience with learning. After having a 45 minute introduction with Ms Bowley, the defendant commenced employment at the centre on 2 June 2008. She was employed on a traineeship with a four week probationary period.
Ms Bowley recalled that the defendant was very good at interacting with the children, and these interactions were age-appropriate. However, the defendant would not actively participate in nappy changing. After two weeks at the centre, Ms Bowley had spoken to the defendant about this issue, after having a complaint from a parent about the state of their child’s nappy. Following this incident, Ms Bowley again instructed the defendant in the nappy changing policy, and demonstrated to her the correct procedure. The defendant demonstrated to Ms Bowley that she was able to do that task. Ms Bowley spoke to the defendant about additional duties which were not being adequately performed, such as cleaning. She did not observe any improvements in this aspect of the defendant’s work following these discussions. Ms Bowley says that she did not believe that there was anything about the way the defendant responded to her that made her concerned that the defendant did not understand the nature of what was being asked of her.
Following the defendant’s four week probationary period the defendant’s traineeship was not continued. Ms Bowley was of the opinion that the defendant did not have the standard required for a trainee, and did not demonstrate the initiative that would ordinarily be required of a trainee, even after positive feedback was given to her. Ms Bowley did not have a concern about the defendant’s intellectual capacity. She says that she did not make any observations that the defendant was disabled. Her reason for not extending the probationary period was that the defendant lacked motivation; she believes her to hold the requisite skills to do the tasks that were being asked of her.
Evidence of Ms Robyn Major
Ms Major was employed as a director of the ABC Learning Centre in 2008. She held this position from 2002 to 2010.
Ms Major gave evidence that she observed the defendant during the voluntary hours she spent at the centre, prior to commencing her traineeship. During this time she says she discussed with the defendant the role, expectations of the position, and whether she was suitable for the job. She says the defendant was excited about the position, and during that time, interacted with the children, and assisted staff in the preparation of a meal.
In cross-examination, Ms Major said that it was possible the defendant had a comprehension problem. She described her as needing more assistance and encouragement than perhaps other people would have needed. Ms Major observed the defendant for one week.
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.
In cross-examination Dr Young was asked in detail about the criteria and standardised scoring involved in the MacArthur Competence Assessment Tool. This tool is a product of two major research initiatives, developed for use with adults over the age of 18. It has been validated with criminal defendants with no mental health issues, criminal defendants with mental health issues whose competence to proceed was not impaired, and criminal defendants adjudicated as incompetent as a result of mental illness. Notably, it has not been normed in Australian populations.
Once the test is administered on the individual and a score is received, this score is then compared against standardised scoring. This standardised scoring has been based on the American test for competence to stand trial, though Dr Young could not say whether the American test differs from the South Australian fitness to plead test. Dr Young says that this assessment is not a test, and merely guided her questioning in order to address the defendant’s competence. She concluded that the defendant did very well in the areas of understanding and reasoning but her appreciation measures were significantly impaired. Dr Young explained that she believes her deficit in the appreciation levels would adversely affect her ability to understand the nature of the proceedings, or to follow evidence or the course of the proceedings, as contemplated in section 269H(c).
Dr Young asked the defendant the following questions:
Q Compared to other people who are in trouble with the law, do you think you are more likely, less likely or just as likely to be treated fairly by the legal system?
A Answer: Less likely.
Comment: Dragging it on, feels like there’s no evidence around the cause of death.
Q Do you think that your lawyer will help you more, less or about the same as lawyers usually help people who are in trouble with the law?
AAnswer: About the same.
Comment: [She knows] lawyers are trying to get the best outcome.
Q Some lawyers expect their clients to tell them everything about how they got into trouble with the law. Compared to other people facing charges like yours, are you more likely, less likely or just as likely to tell everything to your lawyer?
AAnswer: More likely.
Comment: It’s better to tell them everything. That way the lawyers can present the best defence to the courts.
QCompared to other people who are charged with the same offence as you are, do you think you are more likely, less likely or just as likely to be found guilty?
AAnswer: Less likely.
Comment: A lack of evidence.
QCompared to other people found guilty of this kind of crime, do you think you will get more punishment, less punishment or about the same punishment if you are found guilty?
AAnswer: Less punishment.
Comment: What happened was an accident.
QProsecutors sometimes recommend less penalty if defendants agree to plead guilty. Let’s say that the prosecutor makes an offer like that in your case. Compared to other people facing charges like yours, would you be more likely, less likely, or just as likely to plead guilty’?
AAnswer: Less likely.
Comment: No, what’s the point in pleading guilty if there’s not the evidence to back it up? Found no evidence at the post-mortem.
An individual may score a 0, 1 or 2 for their responses, with a 2 signalling a clearly plausible response. Dr Young was cross-examined as to the scores that she had assigned to the defendant’s responses. A greater proportion of these answers received a score of 1; Dr Young says that she believed the defendant’s answers to be limited, and not containing sufficient information for her to consider them to be plausible. She conceded that she may have been influenced by the context of the testing environment, but still did not believe that the defendant was telling her the truth. Dr Young expressed concern that the defendant’s answers reflect mere parroting of expressions she had heard from others, and did not illustrate a true understanding in the general sense.
Dr Young asked the defendant further questions about court process, and the charges against her. Dr Young says that the defendant could articulate that she had been charged with manslaughter but did not having an understanding of criminal neglect. She could, however, distinguish between manslaughter and murder, and had some understanding of the concept of intention; that is, that murder requires an intention to kill someone, whilst manslaughter does not. She understood that she had not been charged with murder.
Dr Young additionally tested the defendant’s level of depression, anxiety and stress using the Depression and Anxiety Stress Scale. She says that the defendant is placed in the ‘extremely severe’ range for all three scales of depression, anxiety and stress.
It was put to Dr Young that, in accordance with DSM-IV, those falling in the category of having mild mental retardation usually achieve social and vocational skills adequate for minimum self support, but may need supervision, guidance and assistance, especially when under unusual social or economic stress. Further, that such individuals can usually be successful in the community either independently or in supervised settings. Dr Young’s evidence suggested that one might expect to see those who fall into this category of mild retardation to have structured or supported employment and accommodation, or ordinary workplace employment involving repetitive or manual jobs. She considered that one could describe an individual, such as the defendant, who was capable of, for example, following the rules of netball, catching the bus, operating an automatic teller machine, or using a mobile phone, as having a higher degree of adaptive functioning within the category of mild mental retardation.
In relation to section 269H(a), Dr Young was of the opinion that the defendant would be able to understand or respond rationally to the charge or the allegations on which the charge was based. In respect of s269H(b), the ability to exercise or give rational instructions about the exercise of procedural rights, Dr Young was of the view that whilst she believed the defendant might struggle, with some assistance, she considered the defendant to be able to do this.
In respect of section 269H(c), the ability to understand the nature of the proceedings, Dr Young has reservations about the defendant’s ability to follow such proceedings. She expresses concern at the ability of the defendant to respond to the information presented, such as the medical evidence. She suggests that the defendant believes this trial, in relation to fitness, to be the principal trial.
Evidence of Mr Richard Balfour
Mr Balfour, called by the Prosecution, is a registered psychologist with experience in clinical and forensic psychology. He holds a Bachelors degree (honours) in psychology from Flinders University and a Masters degree in clinical psychology from the University of New South Wales.

Mr Balfour initially saw the defendant at the request of her solicitor, to prepare a general psychological report. He saw the defendant on 14 August 2008 for a two and a half hour clinical interview. Following this he saw her on 22 September 2008 during which time he conducted two hours of formal psychological testing. On 24 February 2009 he again conducted a two hour clinical interview; he also conducted a clinical interview with the defendant’s mother on this same date. Further two hour clinical interviews were conducted with the defendant on 15 April 2009 and 17 May 2010. Finally on 17 August 2010 a two hour clinical interview was conducted for the purpose of addressing specific questions put to him by the defendant’s solicitor.
After administering the WAIS-III test, a widely accepted and used test by psychologists, Mr Balfour assessed the defendant’s general level of intelligence to be in the 0.4 percentile of the general population for the age group of 18-19 years. This equated to an IQ of between 57 and 65. He noted that there appeared to be a strong consensus between Dr Young, Mr Ireland and himself that the defendant suffers from a mild intellectual disability. Mr Balfour described those suffering from a mild intellectual disability as the group who have the greatest potential for rehabilitation. Comprising the largest group in the community, he says, that with support and appropriate training they can live relatively independent lifestyles.
Mr Balfour was asked his opinion as to whether the defendant would be unable to understand or respond rationally to the charge or the allegations on which the charge is based. He is of the opinion that the defendant has, at a concrete rudimentary level, an appreciation for the allegations against her; she is able to provide her account of what has happened at a basic level, and understands the terms with which she has been charged, and their seriousness.
Mr Balfour observed that the defendant’s answers to the questions he posed were rational at a concrete level and consistent with her having a mild intellectual disability. He questioned the defendant in relation to her understanding of her legal rights at the time she was arrested. Her response, as noted by Mr Balfour, was as follows:
“It means that you have the legal right if you choose you can have a lawyer and not have to say anything to the police because at least if you have a lawyer they can help you decide what to say to the cops, whether it’s right or wrong. It’s good because if you have a lawyer and the police ask you a question your lawyer gets to choose whether that’s the right question to ask or not, it helps because everything the police ask I can go back and discuss with my lawyer, you have a right, I’m trying to think what the saying is now, you have a right to remain silent. It means you have a right to say nothing. Usually if the police ask you something you can’t ask anything unless your lawyer’s present if you requested one.”
The defendant understands at a concrete level that it is an advantage to have a lawyer, and that she does not have to answer the police’s questions.
Mr Balfour is of the opinion that the defendant would be able to exercise or give rational instructions about procedural rights, at a rudimentary level. This is possible with appropriate support. He concludes that the defendant is able to understand the gist of the evidence and proceedings. His evidence, therefore, differs from Dr Young in this respect. In his opinion, the defendant should be able to understand the core themes and pivotal issues in the proceedings with the help of support staff to interpret and explain to her the proceedings at a level that is consistent with her intellectual functioning.
Mr Balfour was asked to given an opinion as to the defendant’s ability to tell her lawyers her side of the story, and to consider the reliability of any statements made in this context. He acknowledged that there have been some issues with lying, and denial coping styles, which have been indicative of responses which were not reliable. He does not, however, believe that this impacts on her capacity to instruct her lawyers. He describes this behaviour as frequent amongst offenders, who often have a biased view of their crime; he describes such denial or lies through deliberate mistruths or omissions as not uncommon.
In his opinion, Ms Ey is fit to plead.
Evidence of Mr Gregory Ireland
Mr Ireland is a psychologist who works in the areas of clinical and forensic psychology. He holds a Masters degree in clinical psychology, and has been practicing in the areas of clinical and forensic psychology since 1979.
He first saw the defendant on 22 June 2010, during which time he conducted both a clinical interview and psychological testing. He again interviewed the defendant on 10 January 2011. Mr Ireland described the defendant initially presenting as intellectually challenged, but not immediately so severe to be in the mild intellectually disabled range of intellectual disability.
Mr Ireland describes the responses given by the defendant in answer to his questions relating to the alleged offence as appearing to be rational, though he suggests that she did not seem to grasp the seriousness of the events. He describes her responses as naïve and child-like, exhibiting a lack of appreciation for an event which others would perceive to be serious. He says she was, however, able to give an account of events leading to the charge that followed a narrative and logical sequence.
After administering the WAIS test, Mr Ireland says the defendant received an IQ score falling between 56 and 67 with a percentile range of 0.64. This was consistent with the results of Dr Balfour and Dr Young. As far as cognitive assessment was concerned, Mr Ireland formed the opinion that the defendant was functioning in the mildly intellectually disabled range.
Mr Ireland adopts a clinical view approach when assessing fitness to plead using a series of standard questions, rather than any formal psychometric or structured testing, which he says tend to be US-based. In Mr Ireland’s report dated 2 August 2010 he sets out some relevant questions asked of the defendant in assessing her understanding of the court proceedings and her responses. The following are some extracts from the report:
When asked what she is charged with she replied that she is charged with ‘Manslaughter and Criminal Neglect’.
When asked how serious these charges are she replied “pretty bad”. She then went on to say she is charged with criminal neglect but that the police do not have any grounds upon which to base the more serious charge.
...
When asked what happens in court Ms Ey replied, “Prosecute trying to put across a different story to the judge to make me look like the guilty one ... what happened wasn’t an accident and I should be responsible for it and not set free.” “Judge who listens to both sides, and judge will decide what best outcome is.”
Asked specifically what the Judge’s role is she replied “Yes, no one else can make the decision ... that is if have judge only no jury.”
When asked what ‘evidence’ means she replied, “... that police gather to bring forward into the case in court.” When questioned further she replied “... like blood samples, not of anything found.”
When asked what is a ‘witness’ Ms Ey replied, “Someone police call in to tell their side of the story of what happened.”
When asked what ‘guilt’ means she replied, “If you are guilty of a crime”. When asked to explain further she replied “If you have done a crime that’s really bad you’ll end up being found guilty by the courts.”
When asked what ‘innocent’ means she replied, “If you haven’t done anything wrong.”
Mr Ireland described an individual with a mild intellectual disability as someone who sees things in concrete terms, who has not reached what one would describe as abstract reasoning or abstract thinking. He says that typically when considering a person who is in the mild category, there tends to be a plateau effect that occurs with a mild intellectual disability in that they do not progress beyond that concrete operations phase. They are, however, trainable, which allows for individuals to learn and develop skills. This enables them to hold down positions where they are well supported and relatively straightforward; that is, more mundane and repetitious.
Mr Ireland considers that the defendant has a working grasp of legal terms and aspects of the legal process, such as the right to silence. He is of the view that, compared to other individuals that he has assessed, she is a relatively high functioning individual in answering questions put to her in the structured clinical interview. Whilst she will need some support, he is of the opinion that her cognitive problems are not so severe as to lead her to be unable to understand or respond rationally to the relevant charge, unable to exercise procedural rights, or unable to understand the nature of the proceedings, as set out in the relevant section.
In relation to section 269H(a) he observes that she responded rationally to the questions posed and had a good appreciation of court terms and process. He believes that the defendant did have a genuine understanding of this, and was not merely parroting information from her counsel. The defendant appreciated procedural rights such as the right to silence, and spoke in a more reasoned way than others who he has assessed. The defendant is able to understand the nature of proceedings and, in Dr Ireland’s opinion, able to follow evidence and the course of proceedings, albeit in a lesser way than someone of average intelligence. He says she displayed an accurate grasp of her legal predicament and the debate that is going on around her, demonstrating an understanding of the rationale for court proceedings, albeit a relatively simple understanding. Mr Ireland says that the defendant continued to impress as more capable than her intellectual test results suggested; he says that her understanding of her current legal circumstances was at a level he found surprising, given these results. He described her as a ‘cut above’ other individuals he had reviewed with similar test results. Mr Ireland concludes that in his opinion, based on the defendant’s responses to questions posed, she demonstrates sufficient understanding to be able to plead, with the support and patience of her legal team.
In cross-examination, it was put to Mr Ireland that the evidence from the child care staff involving the defendant’s carrying out of her duties at work, before and after her conversation regarding her performance, is consistent with the test results which show that she was not able to follow complex instructions or a range of instructions. Mr Ireland acknowledged that this may be consistent if looking straight at the test results. He says that there is a hypothesis that those reasons for her performing her duties in the manner discussed are because she is intellectually low functioning. However, he notes that there could be other factors in place, such as attitudinal, motivational and situational problems, and he does not have sufficient data to answer the hypothesis in relation to the defendant’s intellect with any confidence.
In cross-examination it was asked of Mr Ireland whether in spite of the defendant’s disabilities in relation to the giving of an accurate version of the events, she would be capable of understanding the need to give her lawyers correct information. Further, it was put that she is marred by the fact that she does not understand the necessity to give a truthful answer, resulting in responses which avoid negative reactions. Mr Ireland says he came to the point where he believed she was not unable to understand the need to give accurate information to her counsel, but it was more a question of whether she chooses to do so. He says there exist competing agendas before the defendant, and in his time he has come across many individuals who lie, and who are very intelligent. He acknowledged that she is simple, naïve and immature in many ways, though he questions whether this is entirely due to her intellectual disability.
Legal principles
In R v Abdulla[2] Duggan J traced the common law history of fitness to stand trial in England. He observed that the purpose of the common law and relevant legislation, as developed in Australia, was to ensure that a trial would not be rendered unfair by reason of the inability of the accused person to participate in the trial in an appropriate manner; secondly that the test of unfitness was expressed in a practical manner which had regard to those facets of the trial which required an understanding of, and participation by, the accused; thirdly, that emphasis was placed on the accused’s cognitive ability and any impairment to that ability, whether resulting from a physical or mental condition; fourthly, that unfitness to stand trial could occur as a result of an accused being unable to hear and speak.
[2] (2005) 93 SASR 208 at 16-19.
In R v Presser[3] Smith J outlined the position in Victoria in the following terms:[4]
[The accused needs] to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in the court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any.
[3] [1958] VR 45.
[4] Ibid at 48.
In Kesavarajah v The Queen,[5] Mason CJ, Toohey and Gaudron JJ approved the statement of Smith J in Presser. They observed that, in order for a person to be fit to stand trial, the defendant must be able to understand the nature of the charge, plead to the charge and exercise the right of challenge, understand the nature of the proceedings, follow the course of those proceedings, understand the substantial effect of any evidence that may be given in support of the prosecution and make a defence or answer to the charge.
[5] (1994) 181 CLR 230 at 245.
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.
I am mindful that the defendant is of very low intelligence and that her power of concentration is limited. I am mindful that if she chooses to give evidence, she will require regular breaks and that she may tire easily. Further, having regard to the psychological evidence, caution is required to ensure the defendant understands any question asked. If she is non-responsive to a question it will be necessary to ensure that she understands the question and is able to answer it. As noted by Mr Ireland, one must be mindful of the defendant’s naivety, and level of intellectual functioning. Her evidence must be understood in this context, and her needs accommodated for by appropriate support, breaks and explanations.
Nevertheless, I am not satisfied, on the balance of probabilities, that the defendant is mentally unfit to stand trial.
The application, therefore, is refused.