R v Hayles - [2017] SASC 182

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v HAYLES
Criminal Trial by Judge Alone
[2017] SASC 182
Reasons for Decision of The Honourable Justice Bampton
8 December 2017
CRIMINAL LAW - PROCEDURE - FITNESS TO PLEAD OR BE TRIED
Defendant charged with attempted murder, and in the alternative, causing serious harm with intent to cause serious harm. Counsel for the defendant exercised his independent discretion and elected that the defendant be tried by Judge alone, certifying that he believed the defendant is unfit to instruct counsel or give rational instructions in respect of the charge.
Investigation into the defendant’s mental fitness to stand trial pursuant to the provisions of Part 8A of the Criminal Law Consolidation Act 1935 – whether defendant fit to stand trial – whether defendant capable of following the evidence or course of the proceedings.
Held: Defendant unfit to stand trial.
Criminal Law Consolidation Act 1935 (SA) s 11, s 23, s 269A, s 269B, s 269H, s 269I, s 269J, s 269MA, s 269W, s 270; Supreme Court Civil Supplementary Rules 2014 (SA) r 156, referred to.
R v Presser [1958] VR 45, applied.
R v Pritchard (1836) 173 ER 135; R v Stevens (2010) 107 SASR 456; Kesavarajah v The Queen (1994) 181 CLR 230; Ngatayi v The Queen (1980) 147 CLR 1; Eastman v The Queen (2000) 203 CLR 1; R v Stevens [2015] SASC 79; Owners of Strata Plan No 23007 v Cross (2006) 153 FCR 398, considered.

R v HAYLES
[2017] SASC 182
Criminal

BAMPTON J: Mr Hayles was asked by arresting officers following the alleged stabbing of Kristen Ryan on 28 May 2016 whether he understood what arrest rights were. He said he did not. When an officer said he would explain them to him, Mr Hayles told the officer “I’m actually, I’m actually a disability person”.[1]
[1] Transcript of Record of Interview, page 2.
Kristopher Hayles is charged[2] with the attempted murder of Kristen Ryan[3] and, in the alternative, aggravated causing harm with intent to cause harm.[4]
[2] Supreme Court Information dated 19 June 2017.
[3] Contrary to s 11 and s 270A of the Criminal Law Consolidation Act 1935 (SA).
[4] Contrary to s 23(1) of the Criminal Law Consolidation Act 1935 (SA).
There is no doubt Mr Hayles is a vulnerable defendant. He has been found on neuropsychological assessment to have an intellectual disability. His full scale IQ assessed in August 2016 was 63, at the first percentile and in the extremely low range. This means that 99 per cent of people in his age group have a higher IQ. He has significantly impaired reading skills, below the first percentile. His Working Memory Index was assessed at the first percentile, indicating that he has a significantly impaired ability to hold and manipulate verbal material in mind. His processing speed was assessed at the second percentile, indicating he is very slow at processing information. His verbal comprehension was performed at the first percentile. His perceptual reasoning ability was assessed at the sixth percentile and in the borderline range.
There is no dispute that Mr Hayles’ intellectual disability is a mental impairment as defined by s 269A of Criminal Law Consolidation Act 1935 (SA) (“the Act”). However, Mr Hayles is presumed to be fit to stand trial pursuant to s 269I of the Act unless it is established following an investigation under Division 3 of Part 8A of the Act that he is unfit to stand trial. This is such an investigation.
The right to a fair trial is a fundamental tenet of our legal system. The requirement that Mr Hayles be fit for trial is one aspect of the right to a fair trial. He should not be subjected to a trial when his ability to defend himself is so limited that the trial would be unfair or unjust.[5]
[5] R v Presser [1958] VR 45 at 48; Eastman v The Queen (2000) 203 CLR 1 at 64.
Legal criteria for fitness to stand trial
At common law an accused cannot stand trial unless he or she is fit to stand trial to the charges laid against him or her.
This test for fitness to stand trial has its genesis in the explanation given to the jury by Alderson B in R v Pritchard[6] regarding the Criminal Lunatics Act 1800[7] which provided that:
if any person indicted for any offence shall be insane, and shall upon arraignment be found so to be by a jury lawfully empanelled for that purpose, so that such person cannot be tried upon such indictment …
Alderson B explained to the jury that:
The question is, whether the prisoner has sufficient understanding to comprehend the nature of this trial, so as to make a proper defence to the charge.
He further explained that:
… whether he [the prisoner] is of sufficient intellect to comprehend the course of proceedings on the trial, so as to make a proper defence - to know that he might challenge any of you to whom he may object - and to comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation.
[6] (1836) 173 ER 135.
[7] 39 & 40 Geo. III, c 94, s 2.
The concept of being fit to stand trial requires a minimum level of comprehension by an accused. Smith J identified in R v Presser[8] a number of minimum standards an accused has to be assessed against in applying the test to determine fitness to stand trial (“the Presser criteria”). In order to be fit to stand trial an accused requires the ability to:
·understand the nature of the charge;
·enter a plea to the charge;
·exercise his or her right to challenge jurors;
·understand generally that the trial is an inquiry into whether the accused did that with which he or she is charged;
·follow the course of the proceedings so as to understand what is going on in a general sense;
·understand the substantial effect of any evidence given against him or her; and
·make his or her defence or answer the charge and where he or she has counsel he or she needs to be able to do this through counsel by giving any necessary instructions and by letting counsel know his or her version of events and if necessary giving evidence.
[8] [1958] VR 45 at 48.
These criteria must be considered in the context of the circumstances of the facts and subject matter of the proceeding concerning the charges against an accused together with the number and complexity of the issues involved “in a reasonable and commonsense fashion”.[9] Applying the criteria in this fashion may result in an accused having the requisite fitness to stand trial in one proceeding but not for another.
[9] [1958] VR 45 at 48.
Therefore the question is whether an accused because of mental incapacity fails to come up to these criteria or minimum standards such that he cannot be tried without unfairness or injustice. An accused “need not have the mental capacity to make an able defence or act wisely in his own defence” but must have sufficient capacity to be able to decide what defence he will rely on and to make his defence and his version of the facts known to the Court and his counsel.[10]
[10] [1958] VR 45 at 48.
The majority in Ngatayi v The Queen[11] clarified that the test is concerned with the accused’s ability to understand the proceedings and that complete understanding is not required. To require complete understanding, the majority said:[12]
… may require intelligence of quite a high order, particularly in cases where intricate 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.
The Court went on to state:[13]
… 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.
[11] (1980) 147 CLR 1.
[12] (1980) 147 CLR 1 at 8.
[13] (1980) 147 CLR 1 at 9.
The High Court in Kesavarajah v The Queen[14] applied Ngatayi and held that fitness to stand trial is to be determined in accordance with the criteria formulated by Smith J in Presser.
[14] (1994) 181 CLR 230.
In R v Taylor,[15] Stanley J, with whom Kelly and Peek JJ agreed, said that the High Court in Ngatayi “explains that in deciding whether an accused lacks the mental fitness to stand trial it is relevant that the accused is defended by counsel. So long as the accused has the mental capacity to understand the basic forensic process of the trial and to give instructions upon advice so as to be able to put a proper defence with the assistance of counsel, then he is not able to rebut the presumption that he is mentally fit to stand trial”.[16]
[15] [2014] SASCFC 112.
[16] [2014] SASCFC 112 at [45].
I mention the Full Court’s decision in R v Stevens,[17] referred to by counsel in submissions, as an example of the difficulties associated with determining fitness to stand trial. In a subsequent decision in R v Stevens,[18] I referred to Mr Stevens’ well-documented history of a mild to moderate intellectual impairment with an IQ of less than 70. I also noted that having been declared fit by the District Court to stand trial in December 2009, and the subsequent appeal from that finding being dismissed by the CCA, Mr Stevens was, following concession by the prosecution, found unfit to stand trial in December 2012 in relation to other alleged offending.
[17] (2010) 107 SASR 456.
[18] [2015] SASC 79.
The Presser criteria remains relevant to investigations into fitness to stand trial now prescribed by Division 3 of Part 8A of the Act. Section 269H provides that an accused person who is found to be mentally unfit to stand trial because he or she will be unable to understand or participate rationally in the trial process will not be subject to trial in the normal way:
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.
In the civil jurisdiction, r 4 of the Supreme Court Civil Rules 2006 (SA) defines a person under a disability to include a person who is not physically or mentally able:
(i)to manage his or her affairs; or
(ii)to make rational decisions about taking, defending or settling proceedings (or to communicate decisions to others).
As in the criminal jurisdiction, a person may have sufficient understanding of the nature of simple litigation, its purpose, its possible outcomes and the costs risks associated with it, but that understanding may not be sufficient for complex litigation.
A person’s ability to understand the nature of something that has occurred or a transaction when it is explained to them usually signifies a lack of capacity in civil matters. Questions relevant to whether a person is under a disability pursuant to r 4 are:[19]
·whether the person can act in person or instruct legal advisors;
·whether the person has the ability to understand that they require advice in respect of a particular matter;
·whether they have the ability to instruct legal advisors with sufficient clarity to enable the advisors to understand the situation and to advise the person appropriately; and
·whether the person has the ability to make decisions and give instructions based upon such advice.
[19] Owners of Strata Plan No 23007 v Cross (2006) 153 FCR 398 (Edmonds J).
A person under a disability, as a general rule, may only take or defend civil proceedings through a litigation guardian. As a person with a mental impairment charged with a criminal offence must defend the proceedings in person or by instructing legal advisors, she or he must be capable of satisfying the Presser criteria in order to be fit to stand trial.
Background
Following his arrest, Mr Hayles was conveyed to the Lyell McEwin Hospital (“LMHS”) by ambulance. He was detained at LMHS with an inpatient order to be assessed. The LMHS discharge summary notes that Mr Hayles had been feeling sad for at least three months prior to his admission following his arrest with some neuro‑vegetative symptoms of depression and suicidal ideation. This was noted to have been exacerbated in the context of his relationship breakup “in someone who is extremely sensitive to rejection and abandonment”. It is reported that he had poor impulse control and was not able to control his anger. He was commenced on an antidepressant and responded well. A psychologist visited Mr Hayles while he was at the LMHS. A brief IQ assessment was planned, however, there is no further reference to this in the record. On discharge it was considered he was not suicidal but remained at ongoing suicidal risk due to his intellectual disability. A full comprehensive neuropsychiatric assessment was recommended.
The following entry regarding Mr Hayles is recorded in the LMHS record and dated 29 May 2016, “Insight and judgement: Limited. Does not appear to have fully appreciated the consequences of his action nor did he seem to consider alternative ways to cope with his difficulty”.
On 30 May, an entry apparently made by a psychiatrist, Dr Hmam, records that Mr Hayles “has black and white thinking - he has no capacity to understand his actions and the consequences of his actions”.
Mr Hayles was discharged into the Prison Health Service (“PHS”) on 3 June 2016 where he was observed until 7 June 2016 when it was determined that it was appropriate for him to be discharged into the general prison.
It would appear that, following his discharge from LMHS, Mr Hayles was then detained for a period of time in the Holden Hill cells noting that the psychiatrist Dr Jennings recorded in the PHS record on 3 August that Mr Hayles was not seen by him as he was “….in Holden Hill Cells!!!!!”.
By reference to the PHS record, a prison social worker wrote to Disability SA on 17 November 2016 requesting that Mr Hayles “be considered for eligibility with Disability SA” and reported that he presents as vulnerable and easily influenced. Email correspondence between Mr Hayles’ solicitor and Disability SA indicates that Disability SA does not provide disability services for a person in custody.
The record of interview
Despite telling police he “was a disability person” there is no evidence before me that Mr Hayles’ fitness to be interviewed was defined and evaluated. In this regard, I note that one of the principles of the Attorney‑General’s Disability Justice Plan 2015‑2017 is to provide support and assistance to persons with a disability charged with an offence to ensure they take part in legal processes on an equal basis with others.
Mr Hayles’ record of interview comprises three parts. The first commenced at 2.55 pm on 28 May 2016, the second commenced later that day at 9.18 pm and the third commenced at 10.09 am on 15 June 2016. The third part of the interview takes place in a police vehicle “away at an address in Walkley Heights”.[20] Mr Hayles is sitting in the left hand rear passenger seat with an officer next to him. Another officer holding the video camera appears to be in the driver’s seat.
[20] Transcript of Record of Interview, page 30.
It is agreed between counsel that:
·Ms O’Leary, a solicitor in private practice, saw Mr Hayles on 7 and 23 June 2016;
·Ms Johnson of the Legal Services Commission was assigned to act for Mr Hayles on 3 June 2016;
·Having become aware on 8 June 2016 that Ms O’Leary had lodged an application for legal aid to act for Mr Hayles, Ms Johnson wrote to Ms O’Leary on 9 June advising that she had been assigned to act for Mr Hayles; and
·The first time Ms Johnson was able to speak to Mr Hayles was on 15 June at 1.30 pm.
I note that the first interview Ms Johnson had with Mr Hayles was in the afternoon of the morning of the record of interview “away at an address at Walkley Heights” on 15 June 2016.
Having viewed the audio visual record of interview, it appears that at the time of the interview, Mr Hayles lacked understanding of his legal rights. I also query, having regard to the interview, whether he is susceptible to suggestion and compliance. Whether the circumstances of the interview are such to render it or parts of it inadmissible is not a matter for consideration in this inquiry. It is a matter to be determined if Mr Hayles is tried in the normal way or on a s 269MB hearing.
At page 8 of the transcript of the record of interview on 28 May 2016, Mr Hayles is asked what disability he suffers from and he says “I’m not sure”. He is asked whether he has been diagnosed with a disability and he says “Yep”. Mr Hayles is recorded as saying “I didn’t mean to do it”[21] and telling an ambulance officer that he “wasn’t thinking straight and that’s when …”.[22]
[21] Transcript of Record of Interview, page 11.
[22] Transcript of Record of Interview, page 20.
It is also recorded that he told an ambulance officer on route to the LMHS that he had wanted to harm himself for about a year and that he had been keeping that wish a secret.
During the interview on 15 June 2016, when asked if he wanted lawyer, Mr Hayles said “I should be fine”.
The record of interview also records that he told the investigating officers that he went to the complainant’s house on 28 May because he was “getting her to help [him] out with some stuff”.[23] As the interview progresses it appears that he is referring to getting the complainant to help him apply online for a loan. He said that they had an argument but he could not remember what the argument was about. He then said he decided to grab a knife and “didn’t think quite clear enough”.[24] He described stabbing the complainant. Senior Constable Bos said he had some questions to ask Mr Hayles about stabbing “Kristen in the back of the head”:[25]
AYes I didn’t …
QAnd you stabbed her in the stomach.
AYeah didn’t mean to.
QYou didn’t mean to. What did you want to do when you stabbed her in the back of the head.
AI well I didn’t. I, I was thinking about killing at the time. But umm. I didn’t want to actually hurt her badly. But obviously I did. And I felt bad for it.
[23] Transcript of Record of Interview, page 34.
[24] Transcript of Record of Interview, page 38.
[25] Transcript of Record of Interview, page 51.
Mr Hayles referred to thinking that Kristen Ryan would have “dropped”. The police officer said, “Alright so you stab her in the back of her head thinking she was going to drop. When did you think you were going to kill her?” and Mr Hayles responded: “I thought it umm, she was going to die from that it, that’s why I panicked about it”. The interview continued:[26]
[26] Transcript of Record of Interview, pages 51-56.
QOkay. So. When she didn’t drop. And she ran next door.
AHmm.
QWhat were you thinking then?
AI was thinking is she gonna be alright. Ummm. Am I gonna, am I gonna lose her as a friend.
QOkay, so you stabbed her in the back of the head. You said that at the time you were thinking about killing her.
AYes.
QDo you want to talk to me a little bit about that. Why, why would you want to kill her?
AUmm. I just didn’t think clearly enough I just ummm thought that umm. ‘Cause. She hurt my feelings, I gotta hurt her but. It wasn’t ah …..
QSo she hurt your feelings.
AYes.
QSo you thought I’m going to kill her.
AYep.
QYou stab her in the back of her head.
AUh ha
QThinking that she’s going to drop.
AYep.
QAnd by drop you mean, drop to the ground?
AYes.
QDid you think she was going to die when you stabbed her in the back of her head?
AI thought so, but then. I realised that umm. I didn’t think umm. I’ve done this before. I mean it’s a bad feeling. I mean. I just didn’t think what I, I didn’t quite think I was actually doin’ at that time.
QAlright so you’re not thinking clearly.
AYes.
QAlright then. She didn’t drop; she doesn’t die, you start feeling bad. And then you pick up another knife and you stab her in the stomach. What did you think when you were stabbing her in the stomach. Why did you stab her in the stomach?
AUmm. I’m not sure.
QThere’s a first time you said that stabbed her back of the head.
AHmmm.
QThinking I might kill her. Cause she hurt your feelings.
AYep.
QWhat were thinking when you stabbed her in the stomach?
AI wasn’t sure.
QWhat did you want to do?
AWell I wanted to hurt her, but not badly. But obviously I hurt her really bad.
QHmm. This is after you’ve already stabbed her in the back of the head.
AYeah.
QDid you think by stabbing her in the stomach you could have killed her?
ANo.
QBut you thought that by stabbing her in the back of the head, you might have killed her.
AYeah.
QAlright so she doesn’t drop when you stab her in the back of the head. Did she drop when you stabbed her in the stomach?
ANo. She was standing in front of me.
QOkay so what did you think after that?
AI just completely ummm. Thought if I, if. If I stabbed her. I could try and do it to myself and take it out.
QTake it out of you, or take it out off her?
ATake it out of me.
…
AI thought I was gonna hurt her but not in the way that I did.
QSo when you drove to her house, you were thinking about hurting her?
AYes.
QTell me about that.
AI was thinkin’ about umm using my fist to umm push her around.
Later in the interview he was asked:[27]
[27] Transcript of Record of Interview, page 63; 67-68.
QAnd as you said to my partner I believe, so correct me if I’m wrong, that you wanted her to drop. As if to kill. You wanted to kill her. Is that correct?
AYes.
…
QYou’re angry. You’re upset. At what point does it go to I’m going to pick up the knife and stab her. What made you do that?
AI thought if umm I couldn’t have her, then the other guy couldn’t.
QSo you wandering the house, talking to her for a while. You’s. You actually thought at one point if I can’t have her. No one can.
AYes.
QAnd how did you think you could achieve that.
AUmm. By hurtin’ her in some way, but not using the knife. But then. Instead I decided to umm use the knife.
QSo you picked up the knife.
AYes.
QThinking if you can’t have her, no one can.
AYep. I know that err sounds a bit silly. Doesn’t it?
QWell it sounds like you wanted to kill her. To stop Jason from being in a relationship with her.
AIn the while I didn’t want to kill her but. I thought if I would’ve taken umm, the knife out of umm head; that she would’ve dropped. But she didn’t.
QSo when you say drop, you mean killed though.
AYes. I didn’t wanna do that.
QYou didn’t want to what sorry?
AI didn’t want to kill her.
QBut why did you stab her then?
A‘Cause that was the first thing I thought of.
QBut you understand that stabbing people can lead to killing them.
AYes now I do.
The police officer then said he wanted to clarify something:[28]
[28] Transcript of Record of Interview, page 68
QRight at the beginning of this whole conversation, you said to us that you wanted to kill her.
AYes.
QAlright.
AYeah.
QAnd by stabbing, is that correct?
AYes.
QAnd now you are saying you didn’t want to kill her, you just wanted to stab her so Jason couldn’t have her.
QYep.
QAnd wouldn’t you stab, when you said you’ve stabbed her in the, her in the back of the head, you’ve put it into the middle of the, middle of the head. Not to the bottom, the, back or not to top, but in the middle. Yeah.
QYep.
Mr Hayles’ counsel’s exercise of independent discretion pursuant to s 269W

On 5 September 2017, Mr Mead SC, counsel for Mr Hayles, pursuant to s 269W(2)[29] of the Act exercised his independent discretion and elected under s 269B of the Act that Mr Hayles be tried by Judge alone. In the election, Mr Mead certified that he believed that Mr Hayles is unfit to instruct counsel or give rational instructions in respect of the charge of attempted murder, and he considered that a trial by Judge alone would be in the best interest of Mr Hayles.
[29] 269W—Counsel to have independent discretion
(1)If the defendant is unable to instruct counsel on questions relevant to an investigation under this Part, the counsel may act, in the exercise of an independent discretion, in what he or she genuinely believes to be the defendant’s best interests.
(2)If the counsel for the defendant in criminal proceedings (apart from proceedings under this Part) has reason to believe that the defendant is unable, because of mental impairment, to give rational instructions on questions relevant to the proceedings (including whether to be tried by judge alone), the counsel may act, in the exercise of an independent discretion, in what the counsel genuinely believes to be the defendant’s best interests.
The order for investigation into Mr Hayles’ mental fitness to stand trial
On the attendance for arraignment on 19 June, I remanded Mr Hayles for trial of his fitness to stand trial. At the commencement of the trial on 13 September, being satisfied that there were reasonable grounds, on the basis of two psychological reports, to suppose that Mr Hayles was mentally unfit to stand trial pursuant to s 269J, I ordered an investigation under Division 3 of Part 8A of Mr Hayles’ mental fitness to stand trial.[30] I determined to proceed first with the trial of his fitness to stand trial pursuant to 269MA(1)(a) of the Act.
[30] 269J—Order for investigation of mental fitness to stand trial
(1)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 under this Division of the defendant’s mental fitness to stand trial.
(2)The court’s power to order an investigation into the defendant’s mental fitness to stand trial may be exercised—
(a)on the application of the prosecution or the defence; or
(b)if the judge considers the investigation necessary to prevent a possible miscarriage of justice—on the judge’s own initiative.
(3)If a court orders an investigation into the defendant’s mental fitness to stand trial after the trial begins, the court may adjourn or discontinue the trial to allow for the investigation.
(4)If a court before which a preliminary examination of an indictable offence is conducted is of the opinion that the defendant may be mentally unfit to stand trial, the preliminary examination may continue, but the court must raise for consideration by the court of trial the question whether there should be an investigation under this Division of the defendant’s mental fitness to stand trial.
The trial pursuant to s 269MA(1)(a) of the Act
I received into evidence the report of the forensic and neuropsychologist, Mr Mark Reid, dated 7 February 2017[31] and the report of the clinical neuropsychologist, Dr Emma Scamps, dated 18 October 2016.[32] Both reports were commissioned by the Legal Services Commission acting for Mr Hayles. Mr Reid, Dr Scamps and Mr Hayles’ mother were called to give evidence during the investigation.
[31] Exhibit D1.
[32] Exhibit D2.
The role of an expert
I mention my concern that certain matters were put to Mr Reid in cross‑examination regarding non-verbal signals that may have been depicted in the audio visual record of the interview. Mr Reid had not been provided with the video of the record of interview. In my view, the Legal Services Commission should have asked him to view it prior to calling him to give evidence. As this did not occur, the Director of Public Prosecution’s office should have either asked Mr Hayles’ solicitors to send the audio visual record to Mr Reid or advised that the office would send it to him. In an investigation of this nature there is nothing to be gained in highlighting a gap of this nature in an expert’s evidence by way of cross-examination. Regard should be had to r 156 of the Supreme Court Civil Supplementary Rules 2014 (SA) (“the Supplementary Rules”) which provides:
(1)An expert witness has an overriding duty to assist the Court on matters relevant to the expert’s area of expertise.
(2)An expert is not an advocate for a party.
(3)An expert’s paramount duty is to the Court and not to the person retaining the expert.
…
The psychologists’ evidence
Both psychologists agreed that Mr Hayles is capable of understanding or responding rationally to the charge or the allegations on which it is based.
Dr Scamps considered Mr Hayles was able to understand his procedural rights with assistance.
Mr Reid expressed the opinion in his report that Mr Hayles would not meet the basic standards required by s 269H(b). However, he conceded in evidence that with appropriate assistance he was capable of learning the information in order to understand his procedural rights.[33]
[33] Part 8A Hearing, T31-33.
Therefore, the issue for my determination is whether Mr Hayles’ mental processes are so impaired that he is unable to understand the nature of the proceedings or follow the evidence or the course of the proceedings pursuant to s 269H(c).
Whilst Mr Reid was called to give evidence before Dr Scamps, as he relies on certain testing undertaken by Dr Scamps, I will discuss Dr Scamps’ evidence first.
Dr Scamps’ opinion
Dr Scamps said Mr Hayles was diagnosed with global developmental delay when he was young and, although it appeared that services were involved during his early years, he is not currently a client of Disability SA and does not appear to have much support with respect to his intellectual disability. She noted that he has a driver’s licence and a car, although he requires help for more complex tasks such as applying for a loan for a new car. While he does not have a documented history of mental illness, Dr Scamps said it appears that there were at least a few months of low mood and suicidal ideations prior to the incident. Neuropsychological assessment performed by Dr Scamps confirmed Mr Hayles has a mild intellectual disability and that his general full IQ was 63. The assessment demonstrated his working memory was at the first percentile. Dr Scamps said this meant he cannot hold very much verbal material in mind in order to think about or consider it. Using the analogy of a whiteboard Dr Scamps explained that a person with very low working memory will have a much smaller (whiteboard) space to work with compared to a person of average intelligence. Mr Hayles’ processing speed was assessed as being very slow compared to his same aged peers at the second percentile. His verbal comprehension was performed at the first percentile indicating he had difficulty describing the meaning of words and finding abstract relationships between items of general knowledge. His perceptual reasoning index performed at the sixth percentile demonstrating he had the ability to solve certain visual problems and work with visual information better than verbal information, but still at a level well below people in the population of his age.
Dr Scamps said Mr Hayles’ speech was somewhat simplistic and he was concrete in his thinking. Dr Scamps said he demonstrated impaired new learning and memory and appeared to have difficulty encoding the material he heard. He also demonstrated mild executive dysfunction which suggested to Dr Scamps that he is likely to have difficulties with higher level decision‑making, understanding complex and abstract matters and that he may be more impulsive than an average person.
Dr Scamps considered that Mr Hayles was unfit to stand trial as a result of his impaired capacity to follow the course of the evidence that would be adduced during his trial.[34] In reaching this conclusion, Dr Scamps considered that s 269H(c) required him to be able to follow the course of the evidence, to compare his version of events to other versions of events and to consider options and consequences.[35] She was not sure his brain could engage in this multi‑tasking consideration.
[34] Part 8A Hearing, T114.
[35] Part 8A Hearing, T140.
Dr Scamps said in cross-examination:[36]
[36] Part 8A Hearing, T140-141.
ACorrect me if I’m wrong but I expect he needs to consider what his potential defence might be, and what that might mean for him and what the witnesses say, and like I said what the witnesses say in relation to his version of events, so I see that as holding a number of pieces of information in mind and I do think that it’s difficult to conceptualise when our intellectual functioning is normal so it’s hard to understand how that could possibly be difficult but I think it will be very difficult for Mr Hayles and he will rely very heavily on his lawyer and I understand that he does have a lawyer to assist him.
QDo you then conceive that it is part of his role to be able to have held the evidence in mind and say to his lawyer ‘Some of these things were different from that witness to that witness. I think you need to do something about that’.
AWell, I assume his lawyer will come to him as well to say ‘This is what she said’, so I know that this would be then condensed and simplified for him but at the end of the day my understanding is he needs to be able to instruct his lawyer whether it’s at a very basic simple level but he will be very heavily dependent and I am not sure that he could make an independent choice on his own.
QAn independent choice about what.
AWell, perhaps what his defence would be.
QHe couldn’t make that choice on his own but if he gives his version of events to the lawyer and the lawyer says ‘Well, on what you’ve told me it seems that you’re not guilty because of this or that and this is why’, can he understand that explained in the right way.
AI am not sure that he could, because there are a number of pieces of information that he is having to consider and I think he would say, well, I think he probably would do what the lawyer tells him to do.
QThat would be the same for many people though, wouldn’t it.
ABut many people would have the capacity to consider and I don’t think he has that capacity to consider the alternative or the options if he has a choice in this or that and if his lawyer says ‘This is what we should think you should do’ I don’t think he in his own mind has the capacity these are the two options and the consequences will be - perhaps I am assuming he needs too much cognitive capacity I’m not sure but that’s how I have understood the process.
(Emphasis added)
Dr Scamps agreed that Mr Hayles appeared to have been able to understand that there were potential advantages in pleading guilty (he referred to a 30 to 40 per cent discount on penalty during his interview with Dr Scamps) and he had appeared to have understood that advice, retained it, and had made a decision about it.[37] In cross-examination, Dr Scamps was asked:[38]
QAnd that would suggest that he has been able to meet that task.
AYes, he has been able to meet that task but I didn’t ask him to set out the reasoning for it but it does make logical sense that that is what he might do.
QOf itself there is nothing illogical on its face about making a decision like that.
ANothing illogical, no.
[37] Part 8A Hearing, T142.
[38] Part 8A Hearing, T142.
Dr Scamps considered Mr Hayles could follow the general nature of the evidence that would be given by the complainant, the neighbours, the police, and other witnesses. She said she considered his difficulty lies in assimilating pieces of evidence due to his working memory problems and his difficulty manipulating and holding verbal material. She agreed he is capable “at the time that things are going on” of understanding in a general sense what the evidence is about and can instruct his lawyer as to his version.[39] Dr Scamps considered, however, that Mr Hayles would be impaired in his capacity to choose between options and take into account the consequences of more than one option.[40]
[39] Part 8A Hearing, T145.
[40] Part 8A Hearing, T142.
Dr Scamps considered it was a combination of Mr Hayles’ impaired memory function, that is holding and manipulating verbal information, and his tendency to concrete thinking which would affect his ability to follow the trial. She said it seemed to her that he misinterprets what he hears and it is difficult to know that he has misinterpreted unless he is asked a lot of questions, “so that to me is very literal and he did that again we talked about when I asked how serious the offending was so he interprets things very literally”.[41]
[41] Part 8A Hearing, T146.
Dr Scamps explained Mr Hayles’ tendency to concrete thinking means he may misinterpret what he has heard which will be an impairment to him being able to assimilate what he has heard accurately and give appropriate instructions. She agreed with the prosecutor’s proposition that “if we think about instructions just about in terms of telling the lawyer my version of events, he can do that part of it”.[42]
[42] Part 8A Hearing, T147.
In re-examination, Dr Scamps agreed that it is very difficult for people who have the capacity to conceptualise to understand the limitations of someone who doesn’t have that ability. She said that when our minds are working within normal range it is hard to really understand that limitation (that is, difficulty holding information in mind and conceptualising). She explained that she has assessed a lot of people who have a poor working memory and:[43]
A… the way that they describe it to me is that they can’t keep up with conversations, they will probably forget instructions if they are given a number of things to do they will forget, they can’t think through problems to the same level because there’s not as much information as they can hold in their head and then there is the added difficulty of not being able to hold complex information either so it’s like just having, yes, it’s quite a limited, like I was trying to explain with the white board, that’s what we can hold in our mind and the person whose working memory is very weak will only be able to hold a limited amount which might mean if we are talking about a conversation for example then they might miss the next bit and not realise they’ve missed the next bit or not be able to think it through.
QAnd your analogy of the white board I assume is the full white board with all the information on it is the person who is operating in the average or normal range and when you are talking about a disability that person has just a section of that whole white board.
AThat’s right, whether it’s a quarter of the white board.
[43] Part 8A Hearing, T147-148.
Mr Reid’s opinion
Mr Reid was provided with a copy of Dr Scamps’ report of 18 October 2016 by the Legal Services Commission prior to his assessment of Mr Hayles. He noted that Dr Scamps had assessed Mr Hayles’ intellectual ability using the Wechsler Adult Intelligence Scale 4^th edition. He accepted the results of the assessment and did not repeat it. He undertook other tests to complement the assessment and to specifically investigate Mr Hayles’ ability to comprehend and understand information being put to him. Mr Reid identified that in order for Mr Hayles to follow legal proceedings he needed initial comprehension and understanding of the information presented in a trial and he also needed the ability to learn and retain that information and place it into context.
Mr Reid confirmed Mr Hayles was functioning at around the first percentile compared with his age related peers. He explained that this classified him as having a mild intellectual disability which generally adversely impinges upon all aspects of cognitive skill, although he had a slightly better level of functioning with regard to non-language based skills. Mr Reid referred to Dr Scamps’ assessment of Mr Hayles, noting that his working memory or immediate attention span was impaired and he had impaired new learning and short term memory with difficulty encoding the material he heard. Mr Reid noted Dr Scamps’ reference to Mr Hayles’ mild executive dysfunction or difficulties with higher decision making skills and that she considered that Mr Hayles may be more impulsive than the average person.
Mr Reid agreed in cross-examination that Mr Hayles could, with assistance, exercise procedural rights:[44]
[44] Part 8A Hearing, T31-34.
QCan I ask you this though, taking a different situation, if he were to be sat down in his lawyer’s office in a quiet environment or indeed in a custodial environment if need be, one on one, quiet, giving him small pieces of information, checking his understanding at each stage, is that a different proposition, is he more likely to learn the roles of various court officers given that sort of explanation.
AI believe he could and I believe he could do that to a level which would meet these requirements. Again it is the way the information is presented. It has to be to facilitate him learning it and retaining it. So you would not, for example, read out a whole list of his legal rights, if you like, you would go through them one by one and ascertain that he understood each and every one of those and then at the time of the trial, I think that would have to be gone over again by his counsel with regards to the specific legal right that is likely to be needed to be exercised at that particular point in time. I think I should give an example, I mean, the legislation gives I think that rather poor example of being able to challenge jurors which, to my experience, has never been an issue for people who are intellectually challenged or very intellectual people. I believe if that was explained to him, he’d be able to understand at the time and become involved in that process.
QIf on the day of trial, the lawyer would say to him ‘Today is the day you remember we talked about the jury, today is the selection of the jury, I’m going to talk to you about it and remind you again, this is the task when we go into court right now’. He would, in those circumstances, properly prepare and be capable of proceeding in the procedural right of challenging jurors.
AYes, I believe he could.
QIt’s a question of having to put in the groundwork.
AYes.
QDoes the same thing apply to something like his right to decide whether he wants to have a trial by a judge or by a jury, that it would require some careful work to talk him through it and a reminder when the crunch comes to make that decision, but he’s capable of being coached to that point - coached is perhaps the wrong word - is capable of being educated to that point.
AI would agree with that, I think everyone who is legally naive would require that sort of description and explanation. But I think if that’s done in a way that’s conducive to his level of intellectual ability, that it could occur.
QIs that perhaps identifying the difference between someone who is naive and someone who is unable to exercise their procedural rights in the sense that they have no capacity to learn the things necessary to do that.
AYes, there is that distinction. It’s very rare that I have any problem with this arm of the legislation, if you like.
QSo did you receive any information about whether anyone had sat down with Mr Hayles between the time of these interviews with the police and your assessment to take him through in an appropriate way these things.
AI had no knowledge if anyone had done that, I didn’t ask him that. He may well have picked up some knowledge from within the prison setting of course.
QIn your experience that’s not something that is unusual if someone is in a custodial setting, they’ll pick up that because of the environment they’re in.
AThey get all sorts of advice from other prisoners.
QRight or wrong.
ARight or wrong, yes.
QI take you back to the 269H criteria, perhaps as much just to put some things to one side. Do I understand you correctly in terms of 269H(a) that you regard Mr Hayles as able to understand and respond rationally to the information on which the charge is based.
AYes, I agree.
QHe’s okay on that.
AYes.
QIf we go to (b) the question of whether he is able to exercise or given rational instructions about the procedural rights, do I understand your evidence correctly that at the time of your assessment he wasn’t, but he is a person who with appropriate support could be taught the information and the skills necessary to do that.
AYes, if the person who was providing that information and teaching him that knowledge, if you like, did it in an appropriate manner and this would be one of my criticisms of the police, that they need to be taught to do this in a much better way than they do now.
QAnd this question of doing it appropriately, I mean if someone who is a skilled communicator, a lawyer who is a skilled communicator, this is not a specialist function, you don’t need a psychologist to come and do it.
(Emphasis added)

Mr Reid said it would be beneficial if Mr Hayles’ legal advisors sought assistance from someone who had assessed Mr Hayles, for example himself or Dr Scamps, to give instructions on how to communicate with him and teach him his procedural rights.
Ms Telfer SC, counsel for the Director of Public Prosecutions, suggested that once Mr Hayles’ level of concrete thinking is appreciated and the level at which things need to be pitched is understood the communication process was going to be much more effective. Mr Reid agreed but queried whether or not it would be “adequate enough for the purposes of that education, it would be debatable”.[45] He said there is more to communicating the information appropriately than just getting down to a concrete level but it could be done generally.
[45] Part 8A Hearing, T34.
In response to my question about how long someone in Mr Hayles’ position would retain their learning about procedural rights, Mr Reid said if the teaching were done correctly and appropriately a person would be able to go through a legal trial lasting a few days and during that period, he may need to be reminded of the information, in a very simple manner.
Mr Reid said he would be less concerned that the person actually has the knowledge, and more concerned about the degree to which he can remember and use that knowledge in a functional way in the legal trial.
He agreed that using what has been learnt requires retrieving the knowledge and applying it to the situation at hand.
He also clarified that Mr Hayles could learn a set of words by rote and other things by rote but that doesn’t mean he necessarily knows how to use the information. He said knowing how to use the information depended on the complexity of the situation in which it had to be used.
Mr Reid did not consider that Mr Hayles would be able to understand the nature of the legal proceedings, nor be able to follow the evidence during the trial in a reasonable manner. He said that this is not only related to his overall low level of intellectual ability, which he said in itself is not a specific barrier to fitness to stand trial, but there were two other areas of specific concern which he considered meant Mr Hayles would be unable to effectively follow proceedings and the evidence.
Firstly, Mr Reid said that Mr Hayles has a noted difficulty with effective comprehension of verbal information put to him. Mr Hayles generally became confused after approximately four items of information being presented to him. Mr Reid said that this was assessed in a number of ways and was a consistent finding.
Secondly, Mr Reid said that Mr Hayles has difficulty with new learning and short term memory. Mr Reid said his findings in this regard were entirely consistent with those of Dr Scamps, namely that Mr Hayles 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 him, Mr Hayles simply cannot keep up and gets left behind.
Mr Reid considered that it is possible that Mr Hayles may be considered fit to stand trial in very simple legal proceedings. Mr Reid stated in his report that he is aware that Mr Hayles is not necessarily required to be able to make a defence by himself, but that he does need to have the ability to reasonably assist his counsel in formulating his defence. Mr Reid considered it is probable that Mr Hayles does not have that ability.
Mr Reid described the testing he performed with Mr Hayles in relation to complex ideation material as follows:[46]
What I was trying to do in this testing approach generally was to gain some further understanding or insight into the level of comprehension that Mr Hayles has. In other words, to what degree can he comprehend information given to him and make sense of that information and part of that was several brief tests of ability to comprehend auditory information, auditory verbal information that’s given to him. One of those was a part of an aphasia examination and that particular component is called complex ideational material and basically what that involves is providing the person with an increasing amount of information and then asking them questions about that information as a means of trying to determine whether they understood and comprehended that.
[46] Part 8A Hearing, T7.
He said he found that Mr Hayles’ performance was somewhat variable but generally he could comprehend up to around five-stage instructions. After the five-stage instruction, it started to become more difficult for him to comprehend as the information basically became more complex or more multifactorial.
Mr Reid described the Rey Auditory Verbal Learning Test he administered as a test of new learning and recall of information, “in other words, it’s a test of short-term memory for verbal information presented orally”.[47] At pages nine through 10 of his report, he explained:
This is a serial test of fifteen common words presented over 5 trials. On the initial trial Mr Hayles was able to only recall one word but gave three inappropriate responses. On the second trial he managed to recall four words and this extended up to seven words on the third trial but it plateaued at that level through to the fifth trial. Following a period of delay with distraction he was able to spontaneously recall six of the original words and gained three other words with the aid of a cue or a prompt. This is generally consistent with the findings of Dr Scamps, indicating that he does have some learning capacity with repetition, although this remains well below his expected level for his age group.
[47] Part 8A Hearing, T7.
Mr Reid agreed with Dr Scamps that once Mr Hayles does learn new information it is generally well retained. He noted however that the amount of information he could learn even with repeated trials is consistent with his noted difficulty on tests of auditory comprehension “in that he could only cope with so much information before he becomes overloaded and cannot further encode and store this”.[48]
[48] Report of Mark Reid, 7 February 2017, page 10.
He said the period of retention would last roughly around 20 minutes. He said, in his experience, if someone has retained information learned after 20 minutes of distraction, probably 75 per cent of that information would be retained 24 hours later.
Mr Reid said that in different types of neurological disorders there are different rates of forgetting, which is a diagnostic issue, but in Mr Hayles’ case it is an individualised observation.
Mr Reid explained his assessment of Mr Hayles’ ability to learn and recall less structured information by reading a passage of prose. This assessment involved reading a short story containing 25 items of information to Mr Hayles. Mr Hayles was then asked to repeat as much of the story as he could. Mr Hayles managed to recall four of the 25 items of information. Mr Reid said this was consistent with his intellectual capacity and his auditory verbal learning ability. Mr Reid said a person of average intelligence would be able to relay back 20 or more items of information to demonstrate their comprehension.
Mr Reid also assessed Mr Hayles’ cognitive flexibility. He explained that cognitive flexibility is the ability to deal with more than one line of thought or one item of information at a time and be able to fluctuate between those different items and still retain them appropriately. The way cognitive flexibility is assessed also gives some insight into whether the person tends to respond in an impulsive manner. In accordance with his intellectual level, Mr Hayles was generally slow at this test. Mr Reid said that there are three components to this assessment, the first two being very easy, requiring the person to name patches of colour and to read out a list of coloured words. The third component presents the words and colours in a conflicting manner, for example a word on the test may state “red” but word red is printed in an opposite colour such as green. The person being assessed is asked to state the colour of the ink rather than the word. This third component requires mental manipulation of conflicting information. Mr Reid reported that Mr Hayles was much slower at this third task because it is a more complex task. Mr Reid said it was also relevant to note that Mr Hayles was impulsive and made a number of impulsive errors which he was unable to self-correct. Mr Reid explained that many people will make a mistake by stating the word instead of the ink colour but then realise that is wrong and correct the mistake. Mr Hayles, however, continued on without an apparent awareness of his errors.
In cross-examination,[49] Mr Reid said that Mr Hayles would be able to understand the evidence to be adduced in his trial at a basic level. He said that he has no doubt that Mr Hayles could respond to very individual questions about the evidence if presented in a precise, succinct manner without being double-edged questions or multiple questions built into one. He explained his concern was what Mr Hayles would respond with, and to what degree he can follow all of the information (not the individual questions) and use that information to guide his defence. He considered that Mr Hayles could give evidence if questions were pitched and put to him with knowledge and understanding of his limitations.
[49] Part 8A Hearing, T62-64.
Mr Reid said s 269H(c) implies that a person should be able to follow the evidence themselves without assistance. He said that the more assistance a person has from counsel during the course of the day’s evidence, the more able the person would be to use that information effectively. He queried the level of assistance Mr Hayles would require and to what degree that assistance would be provided in order that the circumstances were such that he would not suffer. Mr Reid questioned whether, if Mr Hayles was called to give evidence, he would require his counsel to have a chat with him every five minutes or every 45 minutes; “I don’t know what’s reasonable here to reach the level of fitness”.[50] Mr Reid considered he would need a significant degree of assistance over the period of a day’s hearing.
[50] Part 8A Hearing, T63.
Mr Reid agreed that, at any one time, as “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”.[51]
[51] Part 8A Hearing, T63 (Emphasis added).
He was asked whether the difficulty Mr Hayles had was being able to retain what happened two days ago and integrate it with what’s happening now and identify “Hang on, there’s an inconsistency here”.[52] He said he understood the legislation required “that the person has to be able to follow the proceedings, but not only follow it, use that information at any stage, maybe day five, use that information to assist his counsel to make a defence”.[53]
[52] Part 8A Hearing, T63.
[53] Part 8A Hearing, T63.
Mr Reid agreed that Mr Hayles can follow the course of the proceedings to understand what is going on in court in a general sense. He agreed that the question for him was whether Mr Hayles can retain the course of proceedings enough at any one time to assist his counsel with questions such as “What inconsistencies do you see? How do you want me to manage this?”.[54] He went on to explain that Mr Hayles must, “not only retain it, but then use that knowledge to think ‘Well that, for example, is not consistent with that’”.[55] He said Mr Hayles may retain the information, but he is concerned as to whether he has the ability to then use that in a meaningful way to guide his counsel.
[54] Part 8A Hearing, T64.
[55] Part 8A Hearing, T64.
Ms Telfer asked Mr Reid whether Mr Hayles would be able to follow the course of the proceedings in a general sense and understand the substantial effect of the evidence called against him, neither of which she said required any analysis. Mr Reid said he considered it to be a question of complexity and a matter of degree and how the evidence is presented to him. At the very least he considered the Court would have to make considerable allowances. He agreed that Mr Hayles’ lawyer would need to have an understanding of his particular difficulties and communicate effectively. As a minimum, the Court would have to offer allowances in terms of the breaks that might be necessary to make sure he could follow the evidence. Mr Reid agreed that Mr Hayles can tell his counsel his version of the facts. He was asked whether:
Q.The real test comes in (c) and your opinion ultimately depends on how the court interprets the degree to which the court needs assist his counsel in the running of his defence.
A.Yes, that’s a large part of it, yes.
Assessment of Dr Scamps and Mr Reid’s evidence
I accept Dr Scamps’ and Mr Reid’s assessments and opinions regarding Mr Hayles’ disability with the exception of their evidence to the effect that s 269H requires the capacity to integrate, analyse and retain the evidence from the beginning to the end of his trial. I have also carefully considered Mr Reid’s evidence, noting his comment about often tending to come down on the side of caution about “whether a person is capable or not”.[56] I have only relied on his opinion regarding s 269H where it is supported by Dr Scamps’ evidence.
[56] Part 8A Hearing, T56.
Mrs Hayles’ evidence
Mrs Hayles said that Mr Hayles was born prematurely, that she had a difficult pregnancy, and his delivery was difficult. She described Mr Hayles being in special classes or units at school. She moved him to St Patricks at Mansfield Park when he was in year 5 and to Thomas More College for senior school where he was placed in a special education unit. She said that Mr Hayles met all of the requirements expected of him in the special unit and his performance at school was excellent.
Mrs Hayles said that her son needed guidance with most of his daily activities. She said that when he left school he was placed on the Disability Support Pension and she became his carer. Mrs Hayles described his work at The Coffee Club as taking chairs off tables and getting them ready for customers.
Mrs Hayles spoke about Mr Hayles wanting to move out of home when he was 21. Mrs Hayles arranged with Housing SA for him to move into a unit, living amongst aged and disabled people. Mrs Hayles said his unit was always untidy and Mr Hayles did not always attend to his personal hygiene. He needed help with cooking and other household tasks he could not do on his own. He came back home within a year as there were complaints and he had to move out. He then moved out with some people Mrs Hayles thought he had met through Facebook. He was living out of home for over six months with Kristen Ryan. Mrs Hayles said that after a while she found he was not looking after himself “and things weren’t going as they should”[57]. She thought that he was also suffering with the financial pressure. He then came back home and said he wanted to get a caravan to live in out the back of his mother’s house, which Mrs Hayles facilitated.
[57] Part 8A Hearing, T161.
Mrs Hayles described her son getting his driver’s licence while at school, suggesting he did a modified test. I suspect Mr Hayles may have had assistance learning for his theory test at school preparatory to sitting for the test at Service SA. I note that Exhibit P3 records that he sat the theory test on 24 June 2009. The same exhibit records that in answer to the question about whether he had taken the licence theory test before, “Yes” is ticked and in answer to; “If yes, where and when?” the following is written: “Learners course June”.
Mrs Hayles spoke about seeking assistance for Mr Hayles a couple of months before he was arrested. She said that at the time he was not himself and seemed different so she felt he needed some professional help. She took him to the LMHS and was sent away to a mental health service in Salisbury. There was a waiting list and she has not heard anything from the service since then.
Exhibit D6, the LMHS Record, indicates that Mr Hayles and his mother attended the Northern Community Mental Health Centre Walk In Service “seeking help for dysthymia and some confusing thoughts”. Mr Hayles is reported to have said he had “too many things” going on in his head and that he had had suicidal thoughts in the past, most recently three weeks prior to the walk in appointment. The author of the record recorded that the plan was for Mrs Hayles to book an appointment with a general practitioner and Mr Hayles was referred to Clinpsych. Mrs Hayles was given contact details regarding Northern Carers support, the mental health clinician was to explore IDSC options and to telephone Mr Hayles’ general practitioner to discuss a Mental Health Care Plan and follow up.
I accept Mrs Hayles’ evidence.
Submissions
Defence Submissions
Mr Mead submitted that Mr Reid and Dr Scamps did not concede Mr Hayles’ ability to understand the substantial effect of the evidence against him or to follow the course of the proceedings. It was submitted that Mr Hayles has had two failed attempts at living independently. He can drive a car, but the psychological evidence is that that is probably as a result of rote learning and constant practice. According to his mother’s evidence, his only work has been, in effect, stacking chairs on tables and he lost that job due to his lack of personal hygiene.
It was submitted that Mr Hayles’ performance in a real life situation bears out the neuropsychological test results, in particular his performance in the record of interview. It was contended that the record of interview is a real life indication of the difficulties Mr Hayles experiences. Mr Hayles is, in effect, unable to look after or defend himself. When the police took him for a drive and offered him a phone call for a lawyer, he had “no clue” that he might need or benefit from the assistance of a lawyer. He was unable to perceive any danger, implications, or consequences associated with talking to the police so he made admissions about having an intention to kill, which he later changed. It was submitted that, unlike many defendants in that situation who make admissions to police, Mr Hayles did not perceive the consequences of his admission. He had no apparent idea of the role of the police or the way in which an interview might be used. Mr Mead questioned how Mr Hayles could make an informed decision, for example, about giving evidence if he could not understand, or had no concept of, the right to remain silent. It was submitted that his inability to work out the best way of approaching the police interview was an indication of how he would fare in a trial.
Although Mr Hayles would have legal assistance during a trial, Mr Mead said there are certain decisions which his lawyers cannot make for him. He would have to assimilate what is said to him by his advisors and make decisions based on the information provided to him. Mr Mead said this was critical because the evidence of the psychologists was that Mr Hayles is unable to hold together various strands of information that he might need to make a decision about matters like giving evidence in a trial. It was submitted that as his lawyer was not present at the time that the alleged offending occurred, the lawyer would not know whether there is something that should be mentioned. The lawyer would not know if there are things about the alleged offending that Mr Hayles has not mentioned because he is not capable of thinking it through, or if he has not retained information and events in his mind that might be important.
It was submitted that the inconsistencies in the record of interview point to a fundamental problem about his comprehension, as indicated by Dr Scamps in her evidence.[58] The inconsistencies were likely as a result of his disability rather than an understanding of the implications of what he was saying and an attempt to “back pedal” on his previous statements. It was submitted that both psychologists indicated that he could not “keep up”. While Mr Hayles might be assisted by the use of simple words, the slowing down of court procedures and the implementation of regular breaks, Mr Mead queried how his advisor could be certain that he has understood. Mr Hayles may say he understands, however the question remains as to whether he actually does understand. In this respect, Mr Mead pointed to Dr Scamps’ evidence, which referred to Mr Hayles putting on a brave face and making it look as if he has understood when it was very possible that he had not.
[58] Part 8A Hearing, T104; T133.

Mr Mead also queried how long, realistically, a court could permit counsel to go through the process of explaining what had occurred and ensuring that Mr Hayles understood that. Mr Mead argued that Mr Hayles falls within a very small percentage of the population who cannot be fairly tried because they cannot fairly defend themselves.
Mr Mead said that Mr Hayles’ inability to keep up was not a new issue. The evidence of his mother and the school reports showed that he has had a lifelong difficulty with keeping up. It was submitted that one of the critical issues in this matter, if it went to trial, would be whether Mr Hayles had a specific intention to kill when he stabbed Ms Ryan (if the fact that he stabbed her is proved), and on the statements, it is quite likely that the prosecution would be able to prove that. Proof of intention is often drawn from considering various pieces of information about the circumstances surrounding the offending to reach a conclusion. Mr Mead submitted that it was this very act of drawing together pieces of information, holding them in mind and then reasoning to a conclusion that the psychologists found Mr Hayles is unable to do.
Mr Mead said that whilst Mr Hayles can use a mobile phone and a GPS, he requires assistance with both. He requires the support of his mother, especially when he was living away from home. It was submitted that Mr Hayles needs:
·to be able to make his own defence or answer the charge;
·to be able to give the necessary instructions by letting counsel know his version of the facts and, if necessary, telling the Court his version of the facts; and
·an understanding of circumstantial evidence in order to understand what the prosecution may put forward as a way of proving circumstantially what his intention was.
Mr Mead contended that it is the second requirement with which Mr Hayles has specific difficulty because it requires an ability to hold things in mind such as to remember what his thought processes were at the time of the alleged offending. In essence, it was submitted that it is Mr Hayles who would need to make the relevant decisions regarding his defence, not his lawyers.
Prosecution Submissions
Ms Telfer contended that whilst it was submitted that Mr Hayles did not, at the time the police questioned him, understand his rights, no evidence was adduced regarding whether, at the time of this hearing, he understood the right to silence and whether he has the capacity to understand it if his lawyer sat down with him at the relevant time and said: “You have a right not to go into the witness box, here are the things that you will consider to make that decision”.[59] It was submitted that the experts had clearly conveyed that Mr Hayles is not unfit for those purposes. The real issue for determination is whether, under s 269H(c), Mr Hayles is able to follow the evidence or the course of the proceedings.
[59] Submissions, T15.
Dr Scamps considered that Mr Hayles was able to understand the nature of the proceedings, in the sense that he understood the proceedings were an investigation into the charge and his responsibility for those events.[60]
[60] Exhibit D2 at 10.
Mr Reid agreed that Mr Hayles was capable of understanding at a basic level that the trial is an inquiry into whether he did what he is charged with.[61]
[61] Part 8A Hearing, T86.
Ms Telfer pointed out that the evidence to be called at trial is not complex or lengthy. A large proportion is videotaped. It was submitted that the factual and evidentiary underpinnings of the charge against Mr Hayles are not complex.
Ms Telfer submitted that Mr Reid misunderstood the requirement that an accused understand the nature of the proceedings. His evidence revealed that he considered the demands of that requirement far more rigorous than required by the Presser criteria.[62] In particular, she submitted that he considered that the requirement included a capacity to understand formal court processes.[63] Insofar as his ultimate conclusion about fitness according to that requirement was affected by this misunderstanding, Ms Telfer submitted that it should be disregarded.
[62] R v Presser [1958] VR 45 at 48.
[63] Part 8A Hearing, T86.
Mr Reid agreed that Mr Hayles had the capacity to follow the evidence that would be adduced in his trial at a basic level. He said that Mr Hayles was capable of watching the video recording of the record of interview and identifying any statements that he made during that interview which he does not agree with. Ms Telfer submitted that Mr Reid agreed that Mr Hayles was capable, with appropriate communication, of understanding the effect of scientific evidence and its relevance to the case against him.[64]
[64] Part 8A Hearing, T61.
Mr Reid’s ultimate opinion, it was contended, was that the real challenge for Mr Hayles would be his capacity to integrate the information given by different witnesses over the course of the trial. Whilst he might be able to follow the substantial nature of the evidence that is given and understand what is going on in court in a general sense, his challenge will be retaining and using the knowledge in an analysis to assist his counsel. In reaching the opinion that Mr Hayles was unfit, Mr Reid considered s 269H(c) required him to be able to take in information, retain and integrate it over time, and apply a degree of analysis to it in order to assist counsel.[65] It was submitted that this interpretation of s 269H(c) is more demanding that the standard required at law.
[65] Part 8A Hearing, T64-65.
Dr Scamps considered that it was a combination of Mr Hayles’ impaired memory function and his tendency to concrete thinking which would undermine his capacity to weigh evidence and appropriately instruct counsel. Ms Telfer contended that Dr Scamps’ interpretation of s 269H(c), requiring Mr Hayles to not only be able to follow the general course of the evidence, but to integrate the evidence, compare various versions of events and then consider the available options and their consequences in order to make an independent decision about his defence and instruct his counsel accordingly, is more demanding than the law requires.[66]
[66] Part 8A Hearing, T140-141.
Ms Telfer contended that the value of the expert opinion on the ultimate question depends on the accuracy of their understanding of the demands of s 269H. She submitted that both Dr Scamps and Mr Reid considered s 269H(c) required Mr Hayles to be able to follow the course of the evidence or the course of the proceedings at a level that would enable him to apply a degree of analysis of the overall strengths and weaknesses of the case against him, to allow participation in tactical decision making as the case proceeds.
It was submitted 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 not it require a capacity to retain the evidence from the start to the finish of the case. Ms Telfer said that to do so would make it impossible for many people of normal or high intelligence to face complex trials without recourse to notes, transcripts and other technological aids. Indeed, it would be a task beyond the capacity of many trained lawyers.
Ms Telfer argued that the test is positioned at a far more practical level, requiring that as the trial proceeds, an accused understands the substantial effect of the evidence as it is given. It was submitted that the psychologists agreed that Mr Hayles could follow the evidence broken down into simple elements and that this establishes that he is fit. Ms Telfer acknowledged that there is no doubt that his intellectual disability will put him at a disadvantage in the courtroom.
Ms Telfer pointed out that no evidence has been called from any lawyer who has contact with Mr Hayles. It was submitted that the experts can only predict Mr Hayles’ response to information and education during the trial process. There is no evidence before the Court of any difficulties that his lawyer may have experienced in taking instructions or in him retaining the information, which are relevant considerations.[67] Neither psychologist tested what memory Mr Hayles in fact had of the events of the relevant day.[68] It was submitted that the videotape of the police interview reveals he has a good memory of the events.
[67] R v Stevens (2010) 107 SASR 456 at 469.
[68] Part 8A Hearing, T108-109.
It was submitted that there was no evidence adduced that Mr Hayles was incapable of making a decision when guided by the assistance of counsel.[69] In this respect, Ms Telfer pointed to the fact Mr Hayles told both Mr Reid and Dr Scamps that he intended to plead guilty, because he had received advice that he would get a discount on penalty for doing so, as evidence of his ability to understand advice, retain it, and make a rational decision on the basis of that advice. Ms Telfer noted that in cross-examination, Dr Scamps had agreed that there was nothing illogical about the decision on its face, although she had not questioned Mr Hayles about his rationale for the decision.
[69] Submissions, T23.
Ms Telfer pointed to the example of Mr Hayles’ driver’s licence, noting that he took a course clearly designed for people with his particular challenges, he was given the information he needed in an appropriate way and as a result of that he was able to meet the challenge of passing his learners theory test in the usual way. Mrs Hayles believed that he had special consideration to achieve his learners permit, however the evidence from Service SA was that the only assistance he would have been provided with was someone reading out the questions and the range of multiple choice answers to him once he had passed, unassisted, that first part of the test. Ms Telfer suggested this was an example of where Mr Hayles, provided with information in an appropriate way, has been able to do something that his mother thought him incapable of.
It was submitted that the psychologists agreed that that the audio visual recording of the record of interview would assist Mr Hayles to recall and understand the case against him. Further, Mr Reid’s evidence was that although Mr Hayles required communication of a particular type, it was not impossible to communicate with him and to check that his intent in making the statement he did to police, for instance, was what he did in fact intend to convey. That communication could be achieved by a person who understood Mr Hayles’ particular needs and how to ensure his understanding. Ms Telfer referred to the Court having the power of controlling its own processes, such that if a prosecutor was cross-examining Mr Hayles in a way that the fact-finder could not be certain about the veracity of his answers, a judge could require the cross-examination to be pitched at an appropriate level such that the answers were reliable.
Ms Telfer expressed concern about Mr Mead’s submission regarding Mr Hayles’ ability to understand how his intention at the time of the alleged offending might be inferred. She said that this issue was not specifically commented on by the experts, but rather, it was put by Mr Mead in submissions as something that Mr Hayles would have particular difficulty with. Ms Telfer said the experts went only so far as to say that he can’t hold various pieces of information in mind and integrate them himself. She agreed at a practical level that the likely issue if Mr Hayles is tried in the normal way would be intent.
Ms Telfer contended that the requirement that an accused follow the course of the proceedings and understand the substantial effect of any evidence that may be given should be read at a very basic level. That is, it should not be read into the test that the applicant be capable of holding the evidence across the course of the trial in mind, integrating each piece of evidence in the case overall and applying a degree of analysis to assist his counsel.
Conclusion
Mr Mead exercised his independent discretion pursuant to s 269W(2) of the Act and elected under s 269B of the Act that Mr Hayles be tried by Judge alone. Mr Mead certified that he believed that Mr Hayles is unfit to instruct counsel or give rational instructions. I note by reference to the Magistrates Court record of outcome that, on 30 May 2016, it is recorded that Mr Hayles was in the LMHS and excused from attending and “Pursuant to s269W of the CLCA counsel informs court that because the deft’s current mental health, no application for bail”. On 28 October 2016, the Magistrates Court was informed by Mr Hayles’ solicitor, Ms Johnson, that Mr Hayles may not be fit to plead. It is evident that both Ms Johnson and Mr Mead, both experienced Legal Services Commission practitioners, have concerns regarding Mr Hayles’ ability to provide them with instructions.
Dr Scamps considers that Mr Hayles has the capacity to understand the nature of the proceedings to the extent required by law. Mr Reid is of the opinion that with appropriate explanation he has that capacity. The question for my determination is whether I am satisfied on the balance of probabilities that Mr Hayles is unable to follow the evidence or the course of the proceedings such that he is not fit to stand trial.
Submissions were made about Mr Hayles’ ability to pass the written test to obtain his learner’s permit. Mr Reid said he would expect someone with a mild intellectual impairment to be able to obtain their learner’s permit:
Again I think it depends on the way they are allowed to learn that information. If it is done at their pace and they’re allowed a lot of repetition and possible multiple answers, yes, I think it’s possible they could get their driver’s licence.[70]
[70] Part 8A Hearing, T26.
Dr Scamps said people with intellectual disabilities drive and have driver’s licences. When asked about Mr Hayles achieving a basic level of learning to obtain a learners permit and whether “That’s not inconsistent with the disability?”,[71] Dr Scamps said:[72]
[71] Part 8A Hearing, T110-111.
[72] Part 8A Hearing, T110.
ANo.
QThat perhaps suggests he got the right support and he’s been able to learn what he’s needed to learn.
AThat’s right.
QWould it also suggest, if he’s successfully driving around, that he’s been able to retain that.
ANot necessarily. I don’t know that he would be able to pass the learner’s test again. I’m making the assumption that he required support primarily for the reading and the language component of getting a licence and not the more visual component, because that’s what came out on assessment as well, that the visual component, his visual problem solving was better than his verbal skills.
QMight it be the case that putting these rules into practice, driving on the road, understanding ‘this is what I do when confronted with a car here, this is the rule for that’ but by using them every day they become embedded and he understands the rules.
AYes. To learn a skill is called procedural learning and that type of learning is a different type of learning to a word list, for example, or remembering your arrest rights for example. So procedural learning, clearly it’s taken him longer to learn that but once he’s learnt it, it’s actually a different part of the brain that is involved with procedural learning and those skills are usually very robust once it’s been learned, and it’s visual and verbal.
QThe procedural stuff is the actual practical driving, the learning enough about the rules to pass the test is —
AIs learning explicitly.
I infer that Mr Hayles’ ability to learn through practice and repetition for the theory test is akin to his ability to learn his procedural rights by learning explicitly. According to the psychologists, this ability is not inconsistent with his intellectual impairment. Mr Hayles’ ability to do this is a factor to take into account but it is not determinative of his fitness to stand trial.
Mr Mead submitted that Mr Hayles’ reference to the discount during his interview with Dr Scamps was a demonstration of his concrete thinking. Ms Telfer submitted that Mr Hayles’ understanding of a discount for pleading guilty suggested that he has been able to weigh up the potential benefit to him in terms of a discount on his penalty, and make a decision on that basis. Whilst the psychologists did not identify this as an example of concrete thinking, the retaining of information pertaining to a discount for doing something would appear to involve concrete reasoning as opposed to abstract or conceptual reasoning. Again this apparent understanding is a factor to take into account but it is not determinative of Mr Hayles’ fitness to stand trial.
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”.[73] 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”.[74]
[73] Part 8A Hearing, T145 (Emphasis added).
[74] Part 8A Hearing, T63 (Emphasis added).
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.[75] 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.
[75] Part 8A Hearing, T63; T145.
While the psychologists agree that Mr Hayles has the ability to understand the evidence at the time it is given, they have concerns, based on their neuropsychological assessments, about his ability to recall and retrieve his knowledge such that he comprehends, and does not misinterpret, the evidence. In order to follow a trial at very basic level, a very basic comprehension of the evidence adduced throughout the trial is required. I hasten to add this level of comprehension may well require some memory jogging when needed. For example, the videorecording of the record of interview (if admissible) may well be used for this purpose.
I agree with Ms Telfer 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”.[76] 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.
[76] Report of Mark Reid, 7 February 2017, page 10.

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”.[77]
[77] Part 8A Hearing, T141.
Mr Hayles is not required to analyse the evidence, but he needs to be able to, borrowing from Alderson B,[78] 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.
[78] R v Pritchard (1836) 173 ER 135.
In ensuring Mr Hayles has a fair trial, the Court must ensure the trial process adapts to accommodate the level at which he can meaningfully participate. I am not satisfied the Court’s processes can be adapted to ensure Mr Hayles’ meaningful participation without unfairness or injustice.
On the balance of probabilities, applying the test in s 269H in a reasonable and common sense fashion, I am satisfied that Mr Hayles, even though 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). By not meeting these requirements, he cannot make his defence.