R v Hayles

Case [2018] SASCFC 58

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Application)

R v HAYLES

[2018] SASCFC 58

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Stanley and The Honourable Justice Parker)

19 June 2018

CRIMINAL LAW - PROCEDURE - FITNESS TO PLEAD OR BE TRIED

Application for permission to appeal against a finding by a judge of this Court that the respondent is unfit to stand trial on a charge of attempted murder and an alternative charge of aggravated causing serious harm with intent to cause serious harm.

The applicant submits that the judge erred in concluding that s 269H(c) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) implies a requirement that an accused is able to retrieve stored memory of the evidence at trial in order to understand his legal advice and make decisions about the course of the trial.

Both parties accept that principles of double jeopardy are relevant in considering whether permission should be granted pursuant to s 269Y of the CLCA.

Should permission to appeal be granted, the applicant invites the Court to decide for itself the question of whether the respondent is unfit for trial.

Held (by Stanley J, Vanstone and Parker JJ agreeing): Permission to appeal granted.  Appeal allowed.

1. The judge has erred in concluding that s 269H(c) of the CLCA implies a requirement that the accused needs sufficient capacity to comprehend the evidence and store the substantial effect of it in his memory so that he can retrieve it when he needs to consult with his legal advisors, understand their advice and decide what to do.

2.  It is sufficient for a finding that the respondent is not unfit to stand trial that he can understand in a general sense the evidence given against him as he hears it.

3.  The principle of double jeopardy does not have any relevance to the application for permission to appeal.

4.  The finding that the respondent was unfit to stand trial was made by reference to the wrong test.  There is a public interest in correcting that error.  Further, there is good reason to think that the application of the correct test will produce a different finding.

5. The evidence establishes that on the balance of probabilities the respondent is not unfit to stand trial by reason of those factors prescribed in s 269H of the CLCA.

6.  Permission to appeal is granted pursuant to s 269Y of the CLCA.

7.  The appeal is allowed. The finding that the respondent is mentally unfit to stand trial is set aside. The matter is remitted to the judge for trial of the charges against the respondent.

Criminal Law Consolidation Act 1935 (SA) s 269H, s 269I, s 269M, referred to.
Nudd v The Queen (2006) 80 ALJR 614; R v Stevens (2010) 107 SASR 456; R v Abdulla (2005) 93 SASR 208; R v Rivkin (2004) 59 NSWLR 284; R v Presser [1958] VR 45; R v…

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R v Hayles [2018] SASCFC 58
Case
[2018] SASCFC 58
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal against a finding by a judge that the respondent was unfit to stand trial. The appeal was brought by the applicant, who alleged that the judge had failed to apply the correct legal principles in reaching her decision and had considered matters not presented in evidence. The dispute arose from allegations that the respondent had stabbed his former fiancée, and the subsequent assessment of his mental fitness to face trial.

The court was required to determine whether the judge erred in her application of the legal test for unfitness to stand trial, specifically whether she had applied an incorrect principle by focusing on the respondent's inability to retrieve stored memories. Additionally, the court considered whether the judge had improperly relied on the opinions of the respondent's legal advisors, which had not been formally admitted as evidence. The court also had to decide whether to grant permission to appeal, considering the implications for the respondent's exposure to the criminal justice system.

The court found that the judge had applied an erroneous principle by equating unfitness to stand trial with an inability to retrieve stored memories. The correct test, as outlined in the relevant legislation, requires an assessment of whether the accused is unable to follow the course of proceedings, understand the evidence in a general sense, or give instructions to their legal representatives. While the respondent experienced difficulties with memory retrieval, the court was satisfied, on the balance of probabilities, that he was capable of following proceedings and understanding evidence sufficiently to provide instructions. The court also noted that even if the judge had considered the legal advisors' concerns, it was not apparent that she placed any significant reliance on them, and this ground of appeal was not pursued.

The court granted permission to appeal, allowing the appeal and setting aside the finding of mental unfitness. A substituted finding that the respondent was not mentally unfit to stand trial was made, and the matter was remitted to the trial judge.

Orders

Orders of the court

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Background

Background to the litigation

The application is based on two grounds. The first ground is that, in finding that the respondent was unfit to stand trial, the judge failed to apply the relevant principles. This really is a complaint that the judge acted on a wrong principle, namely, that a person is unfit to stand trial if he or she is incapable of retrieving a stored memory of the evidence at trial, in order to be able to understand legal advice and make decisions about the course of the trial. The second ground is that the judge had regard to matters not in evidence, namely, the opinions of the respondent’s legal advisors. Background It is alleged that on 28 May 2016 the respondent attended the premises of his former fiancée Kristen Ryan. While they were in the kitchen of her premises, the respondent used a knife to stab Ms Ryan in the back of her neck and then in the stomach. She fled outside into the front yard of her residence. The respondent followed her, calling for her to stop to let him get the knife out of her stomach. He then returned to the house. Ms Ryan followed him inside. The respondent obtained a second knife and attempted to stab himself in the stomach. The police and ambulance service attended. The respondent was arrested. Ms Ryan was taken to hospital. She had surgery to repair a wound to her abdomen which lacerated her small bowel in two places. The wound to the back of the neck was also sutured. On 15 June 2016 the respondent was interviewed by police. He admitted stabbing Ms Ryan. He made statements consistent with an intention to kill her but also other more equivocal and illogical statements.The statutory scheme Division 3 of Part 8A of the CLCA concerns mental unfitness to stand trial. Section 269I provides that an accused is to be presumed fit to stand trial unless he or she rebuts the presumption. The test is decided on the balance of probabilities. It is not sufficient to rebut the presumption that a doubt is raised as to the accused’s fitness.[1] [1] R v Leach [2002] SASC 321 at [10]. Pursuant to s 269J if there are reasonable grounds to suppose that a person is mentally unfit to stand trial, the court before which the person is to be tried may order an investigation into that question. Pursuant to s 269K the court may have a report prepared on an accused person’s mental condition. Section 269L permits the court to try the question of the accused’s mental fitness before any other issue. Section 269M prescribes the procedure if the court decides that the accused’s mental fitness to stand trial is to be tried first. It provides that the court must hear evidence and representations on the question of the accused’s mental fitness to stand trial and may require the defendant to undergo an examination by a psychiatrist or other appropriate expert and require the results of the examination to be reported to the court. At the conclusion of the trial of the accused’s mental fitness to stand trial, the court must decide whether it has been established, on the balance of probabilities, that the defendant is mentally unfit to stand trial and, if so, must record a finding to that effect. If not, the court must proceed with the trial in the normal way.

Evidence

Evidence Before The Court

As a result, it becomes unnecessary to decide the second ground of appeal.Second ground: the judge took into consideration matters not in evidence Had I needed to decide it, I would not have allowed the second ground of appeal. The ground arises from a reference in the judge’s reasons to the respondent’s solicitor and counsel having concerns regarding his ability to provide them with instructions. This was one of a number of matters which were evident from a perusal of the court file but which were not admitted as evidence at the trial. The applicant submits that the judge erred in having regard to such concerns when they were not in evidence. It is not apparent from reading the judge’s reasons in their full context that she placed any reliance upon these concerns. Rather, I consider that the judge referred to them merely as part of the recitation of the background narrative to the application. The judge made no further reference to these concerns in her detailed explanation for the finding she made. Permission to appeal Having concluded that the first ground of appeal has been made out it is necessary to determine whether permission to appeal should be granted pursuant to s 269Y. Mr Mead SC, counsel for the respondent, submits that the Court should refuse the application for permission to appeal because if permission was granted and the appeal was allowed, the respondent would be exposed again to the coercive power of the state by being subjected to a trial of the charges he faces with the risk of conviction and punishment. He submits this is contrary to the public interest in ensuring that a person in the respondent’s position is not twice vexed.[17][17] R v McIntosh [2017] SASCFC 87 at [14]-[16]. Both parties apparently accept that principles of double jeopardy are relevant in considering whether permission should be granted. I do not accept that to be the case. Certainly, if permission is granted and the appeal is allowed, the respondent will be exposed to the processes of the criminal law, whereas presently the finding that he is unfit to stand trial has the consequence that he stands to be dealt with in accordance with the therapeutic scheme established by Part 8A of the CLCA. Part 8A focuses on the protection of the public through the provision of appropriate care and treatment of an accused suffering from a mental disorder or impairment. In my view, permission to appeal should be granted in this case. I come to this view for two reasons. First, the application to appeal raises an important question of law concerning the test for unfitness to stand trial. The judge applied the wrong test. Second, the key decision in this case is that the respondent is mentally unfit to stand trial. The key decision is not an acquittal. A finding of unfitness is a step along a statutory path which can lead to an acquittal, if the objective facts of the charge are not found proved, or a declaration that the respondent is liable to supervision, if the objective facts are found proved.[18] [18] Criminal Law Consolidation Act 1935 (SA) s 269M.

Decision

Reasons for decision

VANSTONE J STANLEY J
The evidence which was accepted establishes that the respondent, while he experiences difficulties in retrieving his stored memory without misinterpretation and confusion, nonetheless is able to follow the course of proceedings and understand the evidence in a general sense sufficiently to be able to give instructions to his counsel. Accordingly, I am satisfied on the balance of probabilities that he is not unable to follow the evidence or the course of the proceedings within the meaning of s 269H(c). There is no challenge to the judge’s findings that the respondent is not unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based, in accordance with s 269H(a); is not unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors), in accordance with s 269H(b); and is not unable to understand the nature of proceedings in accordance with s 269H(c). Accordingly, I am satisfied that he is not unfit to stand trial by reason of those factors prescribed in s 269H. Conclusion I would grant permission to appeal pursuant to s 269Y. I would allow the appeal. I would set aside the finding that the respondent is mentally unfit to stand trial and substitute a finding that the respondent is not mentally unfit to stand trial. I would remit the matter to the judge. PARKER J: I agree with the reasons of Stanley J and the orders that he proposes.

Ratio Decidendi

Legal Principle Established

Established by: VANSTONE J, STANLEY J

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