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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Hayles

Details

AGLC: R v Hayles [2017] SASC 182
Case: [2017] SASC 182
Decision Date: 8 December 2017

CaseChat Overview and Summary

In the case of R v Hayles, the accused, Mr Hayles, was charged with criminal offences and faced the question of whether he was fit to stand trial. The case was heard in the Supreme Court of South Australia, where his fitness to be tried was assessed. The primary legal issue before the court was whether Mr Hayles' mental processes were so impaired that he was unable to understand the nature of the proceedings or follow the evidence or the course of the proceedings, as required by s 269H(c) of the relevant legislation.

The court considered evidence from two psychologists, Dr Scamps and Dr Reid, who both concluded that Mr Hayles was capable of understanding or responding rationally to the charge or the allegations on which it was based. However, the key issue was whether Mr Hayles could follow the proceedings and understand the substantial effect of any evidence that may be given. Dr Scamps testified that Mr Hayles had a mild intellectual disability, with a full IQ of 63, and his working memory and processing speed were significantly below average. Dr Reid opined that with appropriate assistance, Mr Hayles was capable of learning the information necessary to understand his procedural rights.

The court ultimately determined that Mr Hayles was unfit to stand trial. It found that while Mr Hayles had the capacity to understand the nature of the proceedings to a basic level, he was unable to follow the evidence or the course of the proceedings to the extent required by law. The court considered the evidence of both psychologists and the submissions made by the parties, ultimately concluding that Mr Hayles' mental processes were so impaired that he could not participate effectively in his defence.

In light of this determination, the presiding judge, Mr Justice Mead, exercised his discretion under s 269W(2) of the Act and elected under s 269B of the Act that Mr Hayles be tried by a judge alone. Mr Mead certified that he believed Mr Hayles was unfit to instruct counsel or give rational instructions. The court's decision was based on the balance of probabilities, taking into account the evidence presented and the submissions made by the parties.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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