R v Lindsay - [2013] SASC 104

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v LINDSAY
[2013] SASC 104
Judgment of The Honourable Justice Sulan
2 July 2013
CRIMINAL LAW - PROCEDURE - FITNESS TO PLEAD OR BE TRIED - DETERMINATION OF ISSUES
The defendant is charged with murder - the defendant contends that he is unfit to stand trial - the defendant contends that he is unable to exercise procedural rights or give rational instructions about the exercise of procedural rights - the defendant further contends that he is unable to understand the nature of the proceedings or to follow the course of the proceedings.
Held: Application refused. The defendant is not unfit to stand trial.
Criminal Law Consoldiation Act 1935 (SA) s 269H, s 269I, referred to.
R v Stevens (2010) 107 SASR 456; R v Presser [1958] VR 45; Ngatayi v The Queen (1980) 147 CLR 1; Kesevarajah v R (1994) 181 CLR 230, considered.

R v LINDSAY
[2013] SASC 104
Criminal

SULAN J: This is an application by the defendant, Michael Joseph Lindsay, for a finding to be recorded pursuant to section 269H of the Criminal Law Consolidation Act 1935 (SA) that he is mentally unfit to stand trial.
The defendant is charged with one count of murder. The particulars of the offence are that on 1 April 2011 at Hallett Cove, he murdered Andrew Rodger Negre.
The prosecution case is that on the night of 31 March 2011 the deceased and his girlfriend attended at a number of hotels to drink and play the pokies. At about 11pm the deceased’s girlfriend drove home, leaving the deceased at an hotel. Sometime after 12:00pm on 1 April 2011, the defendant and some friends arrived at the hotel. Although the deceased did not know the defendant or his friends prior to this night, the deceased was seen leaving the hotel with the defendant and others. The deceased travelled with the defendant and others to the defendant’s home in Hallett Cove. There the deceased drank alcohol and socialised with the defendant and others at the house. While at the house, the deceased made a gesture at the defendant while the defendant was sitting down. This gesture was construed as having a sexual connotation. The defendant spoke angrily to the deceased, who said the gesture was only a joke. Later, the deceased made a sexual comment to the defendant. This angered the defendant. It is alleged that the defendant beat the deceased, searched his pockets for a wallet or money, and then stabbed him. The deceased’s body was found in a creek bed in Hallett Cove on 8 April 2011. The deceased died as a result of multiple stab wounds. Luke Hutchings, who is said to have been present at the time of the stabbing, is also charged with murder.
Pursuant to section 269I of the Criminal Law Consolidation Act, a person is presumed to be mentally fit to stand trial unless the contrary is established following an investigation under Part 8A…

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 Lindsay

Details

AGLC: R v Lindsay [2013] SASC 104
Case: [2013] SASC 104
Decision Date

CaseChat Overview and Summary

The case of R v Lindsay involved the defendant, who had suffered brain injuries from a motor accident at a young age and was under the management of the Public Trustee. The legal issue before the Court of Criminal Appeal was whether the defendant was fit to stand trial, particularly in light of expert opinions suggesting he was unfit. The court had to determine whether the defendant's cognitive impairments were so severe that they rendered him unable to understand the proceedings, communicate with his counsel, or participate in his defence.

The Court of Criminal Appeal confirmed that the trial judge was correct in assessing the defendant's capacity to understand and answer questions, and that expert opinions were just one factor to consider. The court evaluated various pieces of evidence, including the defendant's interactions with police, his conduct during interviews, and non-expert observations. The court concluded that the defendant exaggerated his cognitive deficiencies when interviewed by psychologists. Observations from non-expert witnesses and the defendant's own conduct indicated he had a better understanding of legal processes than the experts had concluded. The court found that the defendant could comprehend the legal process and his rights, and thus met the criteria for being fit to stand trial under section 269H(b) of the Act.

The court's decision was based on a comprehensive review of both expert and non-expert evidence, concluding that the defendant could exercise his procedural rights and understand the nature of the proceedings against him. The final orders of the court affirmed the trial judge's assessment and upheld the defendant's fitness to stand trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In 2007 when the defendant was aged 23 years, he was awarded $2,215,800 including interest for the motor accident he was involved in as an infant. The Public Trustee manages the defendant’s financial affairs following an earlier application to the Guardianship Board for an independent person to administer his financial affairs.Evidence of Mr Richard Balfour Mr Richard Balfour is a registered psychologist with experience in clinical and forensic psychology. He holds a Bachelors degree (honours) in psychology from Flinders University and a Masters degree in clinical psychology from the University of New South Wales. Mr Balfour first saw the defendant in 2003 when the defendant was aged 18 years. At the time, the defendant was charged with aggravated serious criminal trespass and larceny, illegal use and unlawful possession. Mr Balfour was asked to psychologically assess the defendant to determine whether he was fit to stand trial. In his report dated 13 May 2003, Mr Balfour noted the two head injuries which the defendant had sustained. Mr Balfour’s opinion was that, despite a mental impairment, the defendant was fit to stand trial. Mr Balfour stated:I believe that Mr Lindsay clearly meets the legal definition for having a mental impairment. However, I do not believe that his level of cognitive impairment is so severe that he is unfit to stand trial. He has a sufficient understanding of the charges and basic legal rights. With patient questioning he would be able to instruct his defence counsel sufficiently to enable a fair defence case to be formulated. He exhibits some confusion regarding aspects of the court process but has the necessary intellectual capacity to learn these concepts at a rudimentary level. He would benefit from intense education to further orientate and educate him about the court process. I believe that he would experience some difficulties comprehending the proceedings in a court. However, with rest breaks and assistance from his defence counsel, he would be able to sufficiently appreciate the gist of proceedings in a court. Overall, I would consider Mr Lindsay fit to stand trial. Mr Balfour again assessed the defendant in 2012. He was asked to determine whether the defendant was fit to stand trial for the offence with which he is currently charged. In a report dated 1 April 2012, he concluded that the defendant was not fit to stand trial. The report was based on a two hour clinical interview of the defendant conducted at Yatala Labour Prison, two hours of psychological testing and consideration of a number of other reports and documentation. Mr Balfour assessed the defendant as having an intellectual disability of moderate severity with a level of intelligence in the bottom 0.1 percent of the general population for the age group 25 to 30 years or as having an IQ score of 54. The defendant performed poorly in testing in vocabulary, general knowledge, capacity for abstract social problem solving, comprehension, general capacity for problem solving, speed of information processing, and capacity for new learning. Mr Balfour found that the defendant’s ability for sustained attention and new learning were consistently severely impaired and that the defendant’s immediate and short terms memory was consistently severely impaired.

Decision

Reasons for decision

The Court of Criminal Appeal confirmed that the Judge was correct in regarding herself as being in a position to assess the appellant’s general capacity to understand and answer questions. It confirmed that the opinions of experts are but one factor which the Court must evaluate. Factors such as the conduct of the person when first approached by the police, the conduct of the person during any interview by the police, and other non-expert evidence is relevant to the consideration of a person’s fitness to stand trial.Conclusion I have had regard to the evidence of all the non-expert and expert witnesses and all relevant reports. It is not in contention that the defendant is unfit to stand trial under section 269H(a). Although counsel for the defendant does not concede that the defendant is not unfit under s 269H(b), the primary contention is that the defendant is unfit under s 269H(c). It is not in dispute that the defendant has brain damage as a result of the accident which occurred in his childhood. He is of low intelligence. He is illiterate and has trouble with numbers. I accept that he has more difficulty processing information, and especially complex information, than the average person. The evidence of Ms Mildwaters was that he could be vague at times, and would stare off into space. These were general observations. I accept the evidence of Mr Kora and Mr Nicotra which demonstrates that the defendant can maintain focus when he knows this is important. Mr Balfour said that, having considered the transcripts of the defendant’s phone calls from gaol, it appeared the defendant had understated his knowledge of his legal rights in interview. Mr Reid said that the defendant was probably under-reporting to him. Mr Reid would have conducted further testing to determine the cause of this had he become aware of the under-reporting during the interview. Dr Raeside’s first report indicated the defendant has a very limited knowledge of legal processes. His second report, in response to the telephone transcripts, describes a slightly greater understanding. The prosecution witness Mr Nicotra gave evidence that the defendant generally presented well, although there was a stark change in his presentation in interview on 4 April 2013. Dr Scamps interviewed the defendant 30 May 2013. The inconsistency between what the defendant told her in interview and how he presented to other witnesses caused her to change her opinion. In her report, Dr Scamps noted difficulties in the defendant’s memory, comprehension and ability to provide multiple responses to problems. On reading the non-expert witnesses’ evidence, she concluded there were “significant concerns over the tests results” she had obtained. In her interview the defendant had been unable to write his name. There are many examples in the evidence of the defendant being capable of doing this. I am satisfied that the defendant exaggerated his deficiencies when interviewed by all the psychologists. My observation of the defendant after his arrest and when spoken to by police is that the defendant has an understanding of the legal process, and his legal rights upon arrest.Section 269H(b)

Ratio Decidendi

Legal Principle Established

In relation to s 269H(b) of the Act, regarding the defendant’s ability to exercise his procedural rights, Mr Balfour concludes: b) unable to exercise (or to give rational instructions about the exercise of procedural rights (such as, for example, the right to challenge jurors); orMr Lindsay is not a legally naive defendant. However, he has never participated in a criminal trial before. Despite his frequent contact with the criminal-justice system, he has only acquired an impoverished and incomplete understanding of fundamental concepts relevant to legal fitness. He has struggled to acquire a concrete understanding of some legal concepts. He is prone to parroting Information. He understands what it means to plead guilty, or not guilty, and the likely legal consequences. He understands that his lawyer’s role is to assist him. Despite these gaps in his knowledge, I believe that that he has passed the (b) criteria of the legal test of fitness to stand trial. Mr Balfour was cross-examined on a range of topics, including the defendant’s conduct on previous occasions when he had been arrested and appeared to understand and exercise his rights. Mr Balfour was shown a DVD which contained footage of when the defendant was arrested for the present charge. During the video, the defendant states that he does not wish to answer any questions and asks for his lawyer by name. The defendant becomes visibly frustrated at being held in police custody and states that he wants to go back to the Adelaide Remand Centre because he is expecting a visit from his sister. The defendant suggests to the police a number of alternatives strategies for expediting matters including contacting a different lawyer and moving him to the holding cells in the Magistrates Court. Mr Balfour accepted that the defendant displayed a degree of thinking or planning and that he was able to problem solve to achieve his goal. After reviewing the material for the first time during his evidence, Mr Balfour concluded that his opinion that the defendant is unfit to stand trial was not altered. Mr Balfour gave evidence that the psychological testing which he administered on the defendant was but one aspect of determining a person’s fitness to stand trial. He accepted that the more relevant information that a person has, the better position he or she is in to assess fitness to stand trial. Mr Balfour accepted that factors such as the sophistication of previous offending, intellectual capacity, ability to operate a mobile phone or computer, how a person functions and interacts with others in society and a person’s living skills such as financial management and ability to go shopping are all relevant factors in determining a person’s fitness to stand trial. Mr Balfour gave evidence that nine years have lapsed since his first report was prepared and the defendant’s cognitive functions have deteriorated in that time. Mr Balfour noted the defendant’s ongoing history of cannabis and alcohol use. Mr Balfour considered the complexity of the charge the accused currently faces is greater than the charges faced in 2003.