R v Hayles - [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 Taylor [2014] SASCFC 112; R v Leach [2002] SASC 321, applied.
R v Hayles [2017] SASC 182, not followed.
R v McIntosh [2017] SASCFC 87, discussed.

R v HAYLES
[2018] SASCFC 58
Court of Criminal Appeal: Vanstone, Stanley and Parker JJ

VANSTONE J. I agree with the orders proposed by Stanley J and with the reasons His Honour has written.
STANLEY J.
Introduction
This is an application for permission to appeal against a finding by a judge of this Court that the respondent is unfit to stand trial pursuant to s 269M(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) on a charge of attempted murder and an alternative charge of aggravated causing serious harm with intent to cause serious harm.
Permission to appeal is required by s 269Y(3) of the CLCA. Section 269Y(3) requires the permission of an appropriate appellate court to appeal a “key decision”. A “key decision” is defined to include a decision that a defendant is mentally unfit to stand trial.
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.
Section 269H sets out the criteria for determining mental unfitness 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 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.
The psychological evidence
In this matter, the Court proceeded first with the trial of the question whether the respondent is mentally unfit to stand trial.
Two neuropsychologists, Dr Emma Scamps and Mr Mark Reid, gave evidence at the trial. Each expert gave evidence that the respondent suffers from a mild intellectual disability. It was not in dispute that this qualifies as an impairment of mental processes as required by s 269H. The judge accepted the experts’ opinions regarding the respondent’s disability with the exception of their evidence to the effect that s 269H requires that the accused has the capacity to integrate, analyse and retain the evidence from the beginning to the end of the trial.
The experts agreed that the respondent is capable of understanding and responding rationally to the charge or the allegations on which the charge is based and that he is able, with assistance, to exercise, or give rational instructions about the exercise of his procedural rights.
The judge concluded on the basis of this evidence that the respondent is not mentally unfit to stand trial on the basis of the considerations in s 269H(a) and (b). Accordingly, the issue for determination was whether the respondent is unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings in accordance with s 269H(c).
Dr Scamps gave evidence that the respondent is able to understand the nature of the proceedings, being an investigation into the charge and that he will be found either guilty or not guilty and subsequently given a sentence. She gave evidence, however, she had more concern in regard to his capacity to follow the evidence and the course of the proceedings based on his intellectual disability. She said that he has difficulty understanding abstract information and his working memory is significantly impaired so that he is only able to hold and manipulate small amounts of material in mind at a time. His processing speed is slow and his new learning and memory is significantly impaired. When tested, he did not encode some information, even when it was repeated.
Mr Reid gave evidence that he did not believe the respondent would be able to understand the nature of the trial proceedings, or be able to follow the evidence in a reasonable manner. He considered there were two reasons for this. First, the respondent does have difficulty with effective comprehension of verbal information that is put to him. Second, he has difficulty with his new learning and short-term memory. He is only able to learn and process a limited amount of information and to put this into some form of secondary storage. When too much information is presented to the respondent, he simply cannot keep up and gets left behind. Mr Reid thought that, while the respondent would be considered fit to stand trial in a very simple legal proceedings, such as a speeding fine, however as information and the proceedings become more complex he considered the respondent would not be able to keep up, integrate the information and make reasonable sense of this to assist in his defence. He considered this would be so, even with the assistance of counsel.
The judge found that, on the basis of the evidence of Dr Scamps, the respondent has the capacity to understand the nature of the proceedings to the extent required by law. That left for consideration whether the respondent is capable of following the evidence or the course of the proceedings.
The judge found that the respondent has a capacity to learn through explicit teaching. She held that his ability to pass his learner’s permit test and his practical driving test is an example of this type of learning. The judge found that the respondent’s ability to learn through practice and repetition is akin to his ability to learn his procedural rights. The judge further found that the respondent is capable, at the time evidence is given, of understanding what the witness is talking about. The judge observed that the challenge for the respondent is retrieving his knowledge of the evidence when required.
The judge considered the concerns expressed by Dr Scamps and Mr Reid on this topic. She undertook an analysis of the significance for the inquiry required by s 269H(c) of the respondent’s restricted capacity to recall and retrieve his knowledge of the evidence, so that he comprehends, and does not misinterpret, the evidence.
The judge’s reasons
The judge reasoned as follows:[2]
I agree ... that an accused’s capacity to follow the evidence requires an understanding of no more than the substantial effect of any evidence. It does not require a capacity to integrate the evidence of different witnesses or to analyse and assess the strength of the overall case, nor does it require a capacity to retain the evidence from the start to the finish of the case.
The capacity to follow the evidence must require a capacity to retrieve stored memory of the evidence when required, for example if Mr Hayles’ legal advisors ask him questions about what has been said by a particular witness. He may not be able to retain details of the evidence but with prompts he must be able to retrieve his memory of the substantial effect of evidence given. His legal advisors must be able to have confidence that he has the very basic of understandings and that he has not misinterpreted the evidence adduced. The evidence of Dr Scamps is that one cannot have this level of confidence in Mr Hayles’ case. Both Dr Scamps and Mr Reid said that Mr Hayles cannot keep up, his working memory is weak and he has a tendency to concrete thinking. Whilst he has some capacity to learn with repetition and retain new information, it is “well below his expected level for his age group”. He can only cope with so much information before he becomes overloaded and cannot encode and store new information. The evidence is that he can understand evidence in a general sense as it is given and, if necessary, explained to him. He can respond to individual questions. I am not satisfied that he has the capacity to store what he understands “in the moment” to his memory, recall and comprehend it. The record of interview suggests that he has the capacity to tell “his” version of events. It is, however, unclear what questions he misinterprets, what confuses him, and at what point his responses to questioning are compromised by his impaired memory function and concrete thinking.
I have carefully considered the evidence of the psychologists and the submissions of counsel in considering whether, pursuant to s 269H, Mr Hayles is unfit to plead, by failing to meet the minimum standards prescribed by the Presser criteria. As indicated, there are aspects of the psychologists’ evidence which set the bar higher than required to meet those minimum standards. The minimum standards, in my view, require an accused to be capable of comprehending counsel’s advice which necessarily would contain counsel’s comparison and analysis of the evidence. In comprehending counsel’s advice, an accused must have the ability to retrieve his or her stored memory of the evidence without misinterpretation and confusion.
Whilst it is not Mr Hayles’ task to draw conclusions or draw inferences, it is arguable whether at a very basic level he will need to comprehend how a fact finder might integrate the various pieces of evidence that might be the basis of any inference about his intention. I infer from the fact of his impaired memory function and tendency to concrete thinking that he does not have adequate inferencing skills to understand how his intention at the time of the alleged offence may be inferred. That is, intention may be ascertained by inferences drawn from what he said, and did, from what he failed to say and do and from his own evidence as to his intention.
Dr Scamps expressed the concern that Mr Hayles could not engage in multitasking consideration and that he had an impaired ability to hold and manipulate verbal material. Dr Scamps also referred to the difficulty in discerning whether Mr Hayles in fact understands something when he says he understands or whether he says he understands to put himself in a good light or because he thinks the answer is the one he is expected to give. Although he may be able to give his version of events, I query whether he has the capacity to engage in the basic consideration he is required to undertake in discussing his version with his advisors, in taking into account their advice and deciding what to do. He requires the capacity to do more than “what his lawyer tells him to do”.
Mr Hayles is not required to analyse the evidence, but he needs to be able to, borrowing from Alderson B, comprehend the course of the proceedings and the details of the evidence so that he may make a proper defence. Bearing in mind that he is not required to be able to make an able or wise defence, he needs sufficient capacity to decide what defence he will rely on. He cannot do this if he cannot comprehend the evidence and store the substantial effect of it in his memory so that he may retrieve it when he needs to consult with his legal advisors, understand their advice and decide what to do. His advisors can assist him, remind him of the evidence and give him advice but he must have the capacity to comprehend the substantial effect of any evidence without misinterpretation in order to consider his legal advice and make his own decisions about his defence of the proceedings.
[Footnotes omitted.]
[2] [2017] SASC 182 at [121]-[126].
For these reasons, the judge found that the Court’s processes could not be adapted to ensure the respondent’s meaningful participation in his trial without unfairness or injustice. The judge reasoned that the capacity to follow the evidence required an ability to retrieve stored memory of the evidence as required, without misinterpretation and confusion. This is necessary for the respondent to understand his counsel’s advice, which would include counsel’s comparison and analysis of the evidence.
On that basis, the judge was satisfied that the respondent, even when aided by solicitor and counsel, does not have the capacity to follow the evidence or the course of the proceedings in a general sense, nor does he have the ability to understand the substantial effect of any evidence given against him (other than in the moment it is given). In these circumstances, the judge concluded that the respondent cannot make his defence.
The first ground: the test for unfitness to stand trial
The applicant submits that the judge erred in concluding that s 269H(c) implies a requirement that the capacity to follow the evidence or the course of the proceedings is to be assessed against the 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. The applicant submits that this conclusion forms no part of the criteria against which fitness to stand trial is to be measured and the judge erred in making a finding of unfitness to stand trial on that basis. The applicant submits the test applied by the judge finds no support in the words of s 269H(c) or the common law.
The respondent submits that the judge’s exposition of the minimum standard required by s 269H(c) is the logical extension of the requirement of the common law, as subsequently enshrined in that provision, that an accused person be able to make a proper defence. To do that, the person must be able to follow the evidence and the course of the proceedings. The respondent submits that the test in s 269H should be interpreted and applied by reference to contemporary standards of knowledge and understanding of the intellectual functioning of persons with intellectual disabilities. The expert evidence is to the effect that the respondent does not have the capacity to store what he understands of the evidence in his memory, comprehend it and recall it as required. Accordingly, it was open to the judge to conclude from the evidence that the respondent is unable to follow the evidence or the course of the proceedings to a degree where he would be capable of instructing his counsel so as to make a proper defence.

The application raises the question of the content of the requirement that an accused person must be able to understand and participate in the trial process in an appropriate manner. Section 269H enshrines the principles the common law has developed for deciding whether an accused is unfit to stand trial.[3]
[3] R v Sexton [2000] SASC 276 at [61], (2000) 77 SASR 405 at 418.
In R v Taylor[4] I considered the operation of s 269H.[5] I said:[6]
[4] [2014] SASCFC 112.
[5] Kelly and Peek JJ agreeing.
[6] [2014] SASCFC 112 at [9]-[15].
Section 269H enshrines in statute the common law test. The test to be applied is well settled.
The test at common law, as pointed out by the majority of the High Court in Kesavarajah v The Queen, was based on the explanation given by Alderson B to the jury in R v Pritchard and required the ability: (1) to understand the nature of the charges; (2) to plead to the charge and to exercise the right of challenge; (3) to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged; (4) to follow the course of the proceedings; (5) to understand the substantial effect of any evidence that may be given in support of the prosecution; and (6) to make a defence or answer the charge.
The test should be applied in a “reasonable and commonsense fashion”. The test for fitness “properly understood … may not be very difficult to meet”.
In order to be fit to stand trial, an accused must be able to follow the course of the proceedings so as to understand what is going on in a general sense, but it is not necessary that he or she is capable of following the complexities of legal argument or, for that matter, the intricacies of some forensic or expert evidence. As the majority of the High Court said in Ngatayi v The Queen the test looks to the capacity of the accused to understand the proceedings, but complete understanding may require intelligence of quite high order, particularly in cases where complex legal questions arise. It is notorious that many crimes are committed by persons of low intelligence, but it has never been thought that a person can escape trial simply by showing that he is of low intelligence.
Further, in assessing the fitness of a person to stand trial it is proper for the Court to weight the complexity of the charge faced by the accused and whether the accused is represented by counsel.
In R v Stevens, Sulan J, with whom Nyland and Layton JJ agreed, said:
It is to be noted that the preamble and the wording of s 269H(a) and (c) indicate that the question of a person’s fitness to stand trial is required to be determined having regard to the charge and the allegations on which the charge is based. Mental unfitness is not to be regarded as an abstract concept. Some offences are more complicated to understand than others. There is a need when considering unfitness to stand trial that the particular charges and offences be considered when applying the test set out in s 269H.
In Ngatayi v The Queen, Gibbs, Mason and Wilson JJ said:
The section does not mean that an accused can only be tried if he is capable, unaided, of understanding the proceedings so as to be able to make a proper defence … In deciding whether an accused is capable of understanding the proceedings so as to be able to make a proper defence it is relevant that he is defended by counsel. If the accused is able to understand the evidence, and to instruct his counsel as to the facts of the case, no unfairness or injustice will generally be occasioned by the fact that the accused does not know, and cannot understand, the law. With the assistance of counsel he will usually be able to make a proper defence.
[Footnotes omitted.]
In Ngatayi,[7] the majority expressly approved the explication of the common law principle in R v Presser,[8] where Smith J said:
[The accused] needs, I think 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 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; he needs to be able to make his defence or answers 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 the 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 ...
[7] Ngatayi v The Queen [1980] HCA 18, (1980) 147 CLR 1 at 9.
[8] [1958] VR 45 at 48.
The principles identified in Presser were considered by the New South Wales Court of Criminal Appeal in R v Rivkin where the Court said:[9]
[9] [2004] NSWCCA 7 at [297]-[302], (2004) 59 NSWLR 284 at 297-298.
The central question which arises, in this respect, is whether a reduction in the capacity of an accused to meet the Presser requirements, but which falls short of denying to that accused the capacity to understand and to follow the proceedings in each of the necessary aspects, is sufficient to constitute unfitness, and to justify appellate intervention, in accordance with the test previously mentioned.
In our opinion, that question should be answered in the negative. The Presser test is directed to the minimum requirements for a fair trial. So long as the accused can understand and follow the proceedings in each of its facets, can give appropriate instructions, and can present a proper defence to the charge, he or she is to be regarded as fit to be tried. The fact that the accused may have done so in a better way, had suitable medical treatment or medication been provided, or had that accused possessed greater intelligence or acuity of mind, does not seem to us to be relevant to the question of fitness.
Any other approach might invite invidious comparisons between accused of different intellectual backgrounds or personalities. It could also invite a fruitless search for a hypothetical accused with the capacity, intellectual or otherwise, which might equip him or her with the ability to conduct a defence at a predetermined level of skill.
That is not the concern to which the Presser test is addressed. Inevitably there will be accused who could have done better in a trial, had they possessed a more attractive personality, greater intelligence or education, improved communication skills, a deeper appreciation of the factual and legal issues, or even a better appreciation of the trial process, than those possessed or displayed at trial. It does not necessarily follow that they were unfit to be tried.
That is because the question of fitness to be tried relates to the essential requirements identified by Presser. If the understanding and the mental and physical capacity of an accused means that he or she meets those requirements, then that accused is fit to be tried - a question which is itself to be decided upon a balance of probabilities. The test does not contemplate or assume that an accused is able to perform at trial according to his or her maximum potential.
This conclusion has support in the prior decisions which were cited with approval by Gleeson CJ in Eastman v The Queen in the following passage:
“[25] In the case of Berry Geoffrey Lane LJ, criticising a direction to a jury empanelled to determine an issue of fitness to plead, said:
‘It may very well be that the jury may come to the conclusion that a defendant is highly abnormal, but a high degree of abnormality does not mean that the man is incapable of following a trial or giving evidence or instructing counsel and so on.’
[26] The Ontario Court of Appeal, in R v Taylor, recorded the following propositions, agreed by counsel, as representing the state of authority in that province:
‘(a)The fact that an accused person suffers from a delusion does not, of itself, render him or her unfit to stand trial, even if that delusion relates to the subject-matter of the trial.
(b)The fact that a person suffers from a mental disorder which may cause him or her to conduct a defence in a manner which the court considers to be contrary to his or her best interests does not, of itself, lead to the conclusion that the person is unfit to stand trial.
(c) The fact that an accused person’s mental disorder may produce behaviour which will disrupt the orderly flow of a trial does not render that person unfit to stand trial.
(d)The fact that a person’s mental disorder prevents him or her from having an amicable, trusting relationship with counsel does not mean that the person is unfit to stand trial.’
[27] In the present case, the ultimate test to be applied is the statutory test set out earlier. However, each of the above propositions is sound, and they are consistent with the statutory test.”
[Footnotes omitted. Emphasis in the original.]
In R v Abdulla,[10] 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.[11] Sulan J went on to observe, however, that it is not uncommon for accused persons to have low intelligence, lack of insight into their behavior and low cognitive skills. That does not mean that they are unfit to stand trial.[12]
[10] [2005] SASC 399 at [70], (2005) 93 SASR 208 at 225.
[11] [2010] SASCFC 1 at [10], (2010) 107 SASR 456 at 458.
[12] [2010] SASCFC 1 at [58], (2010) 107 SASR 456 at 468-469.
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 and 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.
In my view the judge has applied too stringent a test in deciding whether the respondent is able to follow the evidence or the course of the proceedings in accordance with s 269H(c). The judge has erred in concluding 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. The judge reasoned that the ability to retrieve stored memory of the evidence without misinterpretation and confusion is the precondition for the respondent to be able to comprehend counsel’s advice, which necessarily would contain counsel’s comparison and analysis of the evidence. The judge held that while the respondent may be able to give his version of events to his lawyers, he would not be able to take into account their advice in deciding what to do. Further, the judge considered he is not able to understand how his intention at the time of the alleged offence may be inferred.
In my view the construction adopted by the judge is contrary to the text, context and purpose of s 269H(c).
A textual analysis of s 269H(c) does not support the proposition that an accused must be capable of comprehending counsel’s advice including counsel’s comparison and analysis of the evidence. This construction goes beyond the principles underpinning s 269H(c) and the authorities explaining the requirement that a person is unfit to stand trial in accordance with s 269H(c) only where he is denied the ability to follow the substantial effect of the evidence or the course of the proceedings. It is sufficient for a finding that he is not unfit to stand trial that he can understand in a general sense the evidence given against him as he hears it.
The word “follow” as it is used in the subsection does not include in its usual definition the additional requirement of retention. To follow the evidence or course of the proceedings is to “maintain awareness of the current state or progress of (events etc in a particular sphere)”.[13] Further, it is the general effect of the evidence that must be understood or “followed”. The test does not require that the accused is able to understand counsel’s comparison and analysis of the evidence, either at all or for the purpose of making decisions about his defence of the proceedings. It is important in this regard to recognise that the judge has already found that the respondent is not unfit to stand trial by reason of the consideration in s 269H(b).
[13] Australian Oxford Dictionary, 2^nd ed, 1999.
Neither is the judge’s interpretation justified by considerations of context or purpose. The context of s 269H is that it enshrines the common law test. The exposition of that test on the authorities does not extend to the construction afforded the provision by the judge.
There is no support to be found in the authorities for the proposition that the minimum requirement of being able to follow the evidence or the course of the proceedings requires that an accused person must have the capacity to store the substantial effect of the evidence in his memory and retrieve that memory when required for the purpose of making decisions about his or her defence of the proceedings. I accept that in Abdulla[14] Besanko J concluded that the term “mental processes” in s 269H includes the ability to receive information, process it and respond to it. However, that proposition does not extend as far as requiring that an accused person can store the substantial effect of the evidence in his memory and retrieve it when he needs to consult with his legal advisors, understand their advice and decide what to do.
[14] [2005] SASC 399 at [70], (2005) 93 SASR 208 at 225.
Neither do the text of s 269H(c) or the authorities support the proposition that an accused person must be able to understand how his intention at the time of the alleged offence may be inferred.
The test for fitness does not require an accused to be able to participate in forensic or tactical decision making in the course of a trial.[15] All that is required for the purposes of s 269H(c) is that the accused is able to understand the substantial effect of the evidence that is given and to provide his counsel with instructions in relation to that evidence. That is the statutory purpose of the requirement imposed by the subsection. That is the minimum requirement of ensuring the accused’s trial is not rendered unfair because he is unable to understand the general effect of the evidence given against him and, as a result, is unable to give counsel instructions in relation to that evidence. However, s 269H(c) does not intend that an accused is unfit to stand trial where he is unable to make forensic or tactical decisions concerning the conduct of the trial. Forensic or tactical decision making in the course of the trial is the province of counsel.[16] Furthermore, in determining whether or not the accused is unfit to stand trial the court must weigh the complexity of the charge faced by the accused and whether the accused is represented by counsel.
[15] R v Stevens [2010] SASCFC 1 at [62], (2010) 107 SASR 456 at 469.
[16] Nudd v The Queen [2006] HCA 9 at [9], (2006) 162 A Crim R 301 at 618-619.
In this case the respondent is charged with attempted murder. The issue at this trial is whether he had the specific intent to kill or inflict grievous bodily harm. This is not an issue of great complexity. The respondent is represented by counsel. The evidence supports a conclusion that the respondent would be able to give counsel instructions on matters relevant to that issue. The respondent will have the assistance that counsel can provide. Counsel will be able to remind the respondent of the evidence that has been given, which evidence, in all likelihood, he has the capacity to understand at the time it is given.
In my view the applicant has made out the first ground.
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.
In this matter the court first proceeded to try the question of whether the respondent is mentally unfit to stand trial. He has not faced a trial on the actual charges. Neither has he faced a trial on the objective elements of the offences with which he has been charged. He has not yet been put in the jeopardy of a trial which might result in a verdict of guilty and the sanction of the punishment meted out by the criminal law. Accordingly, I do not accept that the principle of double jeopardy has any relevance to the application for permission to appeal.
In this case the finding that the respondent is unfit to stand trial is based on an error of law. The finding 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.
For these reasons I would grant permission to appeal pursuant to s 269Y.
The appellant invites the court to decide for itself the question of whether the respondent is unfit for trial. In these circumstances I do not understand the respondent to oppose that course.
Is the respondent unable to follow the evidence or the course of the proceedings?
The finding that the respondent is not fit to stand trial depended upon his inability to meet the more rigorous test applied by the judge. As that test does not form part of the statutory test imposed by s 269H(c), the issue is whether the evidence establishes that the respondent is unable to follow the evidence or the course of the proceedings in accordance with the less demanding standard required by s 269H(c).
Dr Scamps gave evidence that the respondent could “follow the general nature of the evidence that would be given by the complainant, the neighbours, the police and other witnesses”. She agreed that the respondent is capable “at the same time things are going on” of understanding in a general sense what the evidence is about and can instruct his lawyer as to his version of events.[19] Mr Reid gave evidence that the respondent was capable of understanding the evidence of a witness who is giving evidence “in that moment”.[20] He agreed that the respondent is capable of understanding what is going on in court in a general sense.[21] The judge found:[22]
The focus of this investigation has narrowed down to Mr Hayles’ ability to follow the evidence or the course of the proceedings. Dr Scamps agreed to Ms Telfer’s proposition that, “Certainly at the time that things are going on he would understand in a general sense what the evidence is”. Dr Scamps also agreed that he could instruct his lawyer as to his version of events. Mr Reid agreed with Ms Telfer “that as the trial goes on and the witnesses are in the witness box telling the story, that Mr Hayles in that moment is capable of understanding what the person is talking about”.[23]
I understand both Dr Scamps’ and Mr Reid’s evidence to be that Mr Hayles is capable of understanding when, for example, a witness is in the witness box giving evidence, what the witness is talking about. Mr Reid queried whether Mr Hayles was able to retain enough of his understanding to use his knowledge in a meaningful way and perhaps apply some analysis to assist his counsel. I agree with Ms Telfer that this is not what is required. The challenge for Mr Hayles is retrieving his knowledge of the evidence when required.
[Emphasis in original. Footnotes omitted].
[19] R v Hayles [2017] SASC 182 at [49].
[20] R v Hayles [2017] SASC 182 at [76].
[21] R v Hayles [2017] SASC 182 at [78], [100].
[22] R v Hayles [2017] SASC 182 at [118]-[119].
[23] Part 8A Hearing, T63 (Emphasis added).
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.