R v MacGowan - [2017] SADC 107

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MACGOWAN
Criminal Trial by Judge Alone
[2017] SADC 107
Reasons for Decision of His Honour Judge Costello
27 September 2017
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT
The applicant is charged with aggravated robbery and making off without payment. Investigation into applicant's mental fitness to stand trial pursuant to the provisions of Part 8A of the Criminal Law Consolidation Act 1935 was considered appropriate.
HELD: The applicant has not proved on the balance of probabilities that he is unfit to stand trial on the charged offences.
Criminal Law Consoidation Act 1935 ss 269H, 269I, 269J, referred to.
R v Presser [1958] VR 45; R v Gillard [2006] SASC 46; Kesavarajah v R (1994) 181 CLR 230; R v Taylor [2014] SASCFC 112; R v Stevens (2010) 107 SASR 456; R v Wahlstedt (2003) 231 LSJS 140, considered.

R v MACGOWAN
[2017] SADC 107
Introduction

Luke MacGowan is charged with one count of making off without payment and one count of aggravated robbery.
The particulars of the offence of making off without payment are as follows:
Particulars of Offence
On the 26^th day of June 2016 at Whyalla Stuart in the said State, knowing that payment was required or expected for goods or services, namely fuel, of the value of $58.00, dishonestly made off intending to avoid payment.
The particulars of the offence of aggravated robbery are as follows:
Particulars of Offence
On the 26^th day of June 2016 at Whyalla Norrie in the said State, committed robbery by using force, or threatening to use force, against Luke Brougham and Maria Martin in order to commit theft by taking cash of the value of $2,500 or less from Des’s Cabs, Oborn Street, and the force was used, or the threat was made, at the time of, or immediately before or after, the theft.
It is further alleged that the circumstances of aggravation are that the offender committed the offence in company with one or more other persons and the offender used, or threatened to use, an offensive weapon to commit, or when committing, the offence.
Mr MacGowan has made an application pursuant to s 269J(2)(a) of the Criminal Law Consoidation Act 1935 (‘the Act’) for an investigation into his mental fitness to stand trial.
On an application of this nature Mr MacGowan carries the onus as s 269I of the Act provides that:
269I—Presumption of mental fitness to stand trial
A person's mental fitness to stand trial is to be presumed unless it is established, on an investigation under this Division, that the person is mentally unfit to stand trial.
The Legal Test
The test for whether a person is mentally unfit to stand trial is set out in s 269H of the Act which provides:
269H—Mental unfitness to stand trial
A person is mentally unfit to stand trial on a charge of an offence if the person's mental processes are so disordered or impaired that the person is—
(a)     unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based; or
(b)     unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or
(c)     unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.
The provisions of s 269H largely reflect the common law test for fitness to stand trial which was enunciated by Smith J in R v Presser[1] in the following way:
He needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any.
[1] [1958] VR 45 at 48.
This test was approved by the majority of the High Court in Kesavarajah v R:
In R v Presser, Smith J elaborated the minimum standards with which an accused must comply before he or she can be tried without unfairness or injustice … Those standards, which are based on the well-known explanation given by Alderson B to the jury in R v Pritchard …, require the ability (1) to understand the nature of the charge; (2) to plead to the charge and to exercise the right of challenge; (3) to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged; (4) to follow the course of the proceedings; (5) to understand the substantial effect of any evidence that may be given in support of the prosecution; and (6) to make a defence or answer the charge.
More recently in R v Taylor[3] Stanley J said:
The test should be applied in a ‘reasonable and commonsense fashion … The test for fitness ‘properly understood … may not be very difficult to meet...
In order to be fit to stand trial, an accused must be able to follow the course of the proceedings so as to understand what is going on in a general sense, but it is not necessary that he or she is capable of following the complexities of legal argument or, for that matter, the intricacies of some forensic or expert evidence. As the majority of the High Court said in Ngatayi v The Queen … the test looks to the capacity of the accused to understand the proceedings, but complete understanding may require intelligence of quite high order, particularly in cases where complex legal questions arise. It is notorious that many crimes are committed by persons of low intelligence, but it has never been thought that a person can escape trial simply by showing that he is of low intelligence.
Further, in assessing the fitness of a person to stand trial it is proper for the Court to weigh the complexity of the charge faced by the accused and whether the accused is represented by counsel.
[3] [2014] SASCFC 112 at [11]-[13].
Finally, I note the observations of Sulan J in R v Stevens[4] who said:
… It is not uncommon for those who are before the criminal courts to have low intelligence, lack of insight into their behaviour and low cognitive skills. That does not mean that they are unfit to stand trial.
[4] (2010) 107 SASR 456 at [58].
Prior to considering the foregoing principles, as they apply to the current application, it is convenient to set out the prosecution case, albeit only in overview.
Prosecution Case
It is alleged by the prosecution that in the early hours of 26 June 2016, at about 2.15 a.m., a blue Holden Astra sedan pulled up at a fuel pump at the BP On-the-Run in Whyalla Stuart. The attendant made observations of a male fuelling the vehicle. The male fuelling the vehicle was captured on the CCTV. The male left in the vehicle without making any attempt to pay for the fuel. It was about two and a half hours later that it is alleged that the same vehicle pulled up at the petrol bowsers adjacent to the office of Des's Cabs in Whyalla.
What is shown on the CCTV is a male matching the description of the applicant and wearing clothes that match the description of clothing later found in the possession of the applicant, walking towards the door of Des's cabs, opening the door before returning to the Holden Astra and speaking to the person in the front passenger seat and then getting into the rear passenger seat. Upon the male, matching the applicant's description getting into the rear passenger seat, two males from the front driver and front passenger seat exited the vehicle and on the prosecution case threatened the occupants of the office with a sawn-off shotgun and stole money in the about the amount of $700. CCTV footage shows those two men returning to the same vehicle, and the Holden Astra driving away.
On the prosecution case there is a connection between the applicant and the vehicle. The applicant had been photographed a couple of days earlier standing near that vehicle and wearing shoes consistent with those depicted by the male seen in the CCTV footage. On the prosecution case the applicant was renting a hotel room both before and after the alleged offending but not on the evening of 26 June 2016 and police later found in that hotel room a pair of jeans that were consistent with those worn by the male who on the prosecution case is the applicant on the footage.
Although on this trial the applicant is charged on his own, the prosecution can establish the identity of his two co-offenders. Both match the physical description of those observed on the CCTV footage. There is evidence of a connection between Matthew MacGowan and the Holden Astra vehicle. There is also evidence of a connection between Justin Mason and a sawn-off firearm consistent with that shown in the CCTV footage. One such firearm was found buried in premises to which Justin Mason was connected, and there is a fingerprint match on that firearm.
The prosecution case therefore is a circumstantial case connecting the applicant to the offences of robbery and make off without payment, which is then supported by evidence of what are alleged to be a series of admissions made by the applicant using both Facebook and an Internet messaging application, and during the course of audio recorded telephone conversations between himself and Matthew MacGowan, subsequent to the applicant’s arrest.
It is apparent from the above and from what the applicant told Dr Scamps that the trial will focus around the issue of joint enterprise. It is likely to be a trial where the majority of evidence would be presented visually. In this respect I have in mind the CCTV footage from both scenes and the photographs of messages sent and received on Facebook, together with the audio of the prison calls between the applicant and Matthew MacGowan. The issues at trial are likely to be whether it is the applicant who is depicted on the CCTV footage, and if so, whether he was involved in the commission of those crimes as part of a joint enterprise.
Against that background I now turn to consider the application in more detail.
The Hearing
The applicant called two witnesses, Dr Scamps, a clinical neuropsychologist and Mr Blanks, a support worker in the field of disability care who has been one of the key persons responsible for managing Mr MacGowan’s day to day needs at his supported accommodation facility.
Dr Scamps
She provided a written report which was supplemented by her oral evidence.
In her written report Dr Scamps[5] set out the various neuropsychological tasks which were administered to Mr MacGowan.
[5] Exhibit D1.
After taking his history and administering the various tests Dr Scamps concluded that Mr MacGowan has a Mild Intellectual Disability.
In terms of his mental fitness to stand trial, she opined that he was able to state what he had been charged with and was able to respond rationally to the charge.
She said that with the assistance of a lawyer he would be able to exercise his procedural rights.
However, she concluded that his cognitive impairments were such that:
… He will not take in all that is said, and even with the support of his lawyer, he will be at a significant disadvantage due to his cognitive impairment. Poor cognitive flexibility means that he is likely to get stuck on ideas and not be able to incorporate new information into his way of thinking. In my opinion, Mr MacGowan’s cognitive impairments will significantly disadvantage him through the trial process.
In conclusion, she said that he was not fit to stand trial.
In her oral evidence she said that she had modified this opinion.
In examination-in-chief she said that:[6]
[6] T17-21.
A... Since writing that I didn't have the police transcript, the record of interview transcript, and hadn't viewed the video from the DPP at that time. Having now viewed that, I have formed the opinion that I do believe that he will be significantly disadvantaged in the courtroom, but that he is likely to rely very heavily on his lawyers, but he may benefit from the support of his lawyers enough to be able to have an adequate understanding of what's been happening.
QAnd have you reached that opinion largely because of new information you have had about his apparent understanding of the criminal justice system and its various aspects from his prior experiences as evidenced in, for example, his interview with police or his arrest by the police.
AYes, that's right. In that DVD I could see that he has very clearly understood his right to remain silent, and he knew he had been told that from another lawyer, and he was very quick to make that decision, but there was also - I formed the opinion, based on that, that he understood what bail was, he understood that he could apply for bail, he understood evidence and the impact of evidence, and I believe that's probably from his past experience with court and with other offenders.
QWhat was it in the arrest video which made you think that he understood evidence.
AI have taken some notes. There were a couple of things he said. He said 'You've got nothing on me', and then I think he said 'There's no video surveillance', or maybe I've written it, and then a little bit later on he said 'You haven't got anything on me or why would you be here looking for the stuff?'. So I took that to mean that he understood that the police were searching his room in order to find something, evidence, that would incriminate him, and he understood that that was the reason they were searching his room.
QSo is it the case that now you would modify the sentence that I read out before which was 'He will not take in all that is said, and even with the support of his lawyer he will be at a significant disadvantage due to his cognitive impairment', is that right. Would you modify that sentence now.
AYes.
QIn what way.
AI would maintain the opinion that he is struggling in court to understand but that with careful and, I guess, well-informed methods, his lawyer may be able to provide him with enough assistance for him to be able to understand what has happened in court.
QAnd what methods, in particular, would you recommend that his lawyer employs to ensure that he is assisted in those ways.
AI would recommend that there are reasonably frequent breaks during the proceedings where his lawyer is able to recount to Mr MacGowan - interpret, to use that word - what's happened. So, I guess it depends on what's actually occurring in court at the time, and it might be every hour or it might be every hour and a half where sort of an interpretation is required and his lawyers will need to break down that information into very simple and short chunks, use simple language, slow down his speech so that it can be processed, and to check in with him and ask him what his understanding is of what has occurred. So, perhaps even using words like 'So what does that mean?', 'What have I said to you?', 'Can you say that back to me?', just to really ensure that he has understood what's occurred or what he's been told. In this situation I still do have concerns about his suggestibility and his ability to make his own decisions based on the information he has been provided with, but I do understand that most defendants rely on counsel and on advice of their lawyers. So it is likely - very likely, I would say - that he will do what the lawyers tell him to do, what his lawyers tell him to do, but, yes, using those strategies I think will improve his ability to understand the court proceedings and the evidence.
QDid you also give consideration to whether or not Mr MacGowan would have the ability to give evidence on oath. I know this isn't covered in your report –
ANo.
Q- but did you consider that.
AI have since considered that, yes. I don't believe Mr MacGowan would be able to give evidence under cross-examination in a way that he could cope with.
QWould the likelihood that he would experience stress in that setting contribute to his difficulties in giving evidence.
AI think that's very highly probable, yes.
QAnd what effect would stress have upon his ability to give evidence.
AI think he's already compromised cognitive and intellectual functioning will significantly impact on his ability to give evidence in that he probably will have a lot of difficulty organising his thoughts, being able to provide consistent information and being able to think through what he's been asked, and stress will compromise that even further. So, I guess, it will lower his ability to manage those things even more.
QWould confusion be something that he would be likely to experience if he was required to give evidence.
AYes, I think so. I understand he would be given questions that are relatively straightforward but then he might also need to think about information that requires a little bit of a higher level of cognitive functioning.
QJust in relation to the particular issues that might arise in the matter before the court, are there any particular issues that you foresee he would find difficulty, great difficulty, expressing himself in relation to.
AThe main issues I think is that he is suggestible and he will be easily led. He may have difficulty expressing himself around complex ideas. He would need to follow and understand questions. So I think he would have - could you repeat your question just so I can answer it, sorry?
QAre there any particular aspects of the allegations relating to this case that you believe he would have particular difficulty with when giving evidence.
AI expect he may have difficulty with remembering perhaps what he knew at the time as opposed to what he knows now, being able to separate those two things, or what his intentions perhaps were. I think his memory and his ability to pull apart what he knew then and what he knows now would be very difficult for him, and also probably remembering from his own memory as opposed to what he has been told. I think that information will become muddled and confusing for him.
QWould there be a difference between his ability to give evidence-in-chief and his ability to manage cross-examination by a prosecutor.
AI think he'd have more difficulty with the cross-examination because that's testing him more so.
QIf propositions were put to him as assertions of fact, do you believe he might have difficulties coping with those sort of questions or those sort of propositions.
AYes, I believe his suggestibility would lead him to be much more likely to acquiesce or to say 'Yes' rather than to refute something and to provide his own explanation. People with a mild intellectual disability in general may be more likely to reply 'Yes' rather than to provide their own answers and I think Mr MacGowan is certainly within that category.
QSo considering all of the matters that you have talked about today, are you still of the opinion that Mr MacGowan is unfit to stand trial.
AI have changed my opinion slightly on his ability to be able to understand with his lawyer's support, but assuming that his ability to give evidence comes under that part of the Act, then, yes, I believe he is unfit to stand trial.

In cross-examination she accepted that with appropriate breaks and time to speak to his lawyer he would be able to understand and follow proceedings.
She said that her principal concern centred around his ability to cope with cross-examination although his case for her was ‘somewhat borderline’.
She was asked whether his ability to answer questions in cross-examination might depend to some extent upon the manner in which the trial judge managed the trial in the way of taking breaks and monitoring the complexity of questions put to him.
She said:[7]
AYes, I certainly think that would help a lot. I would assume that the judge would have an understanding and would have read my report of the problems that Mr MacGowan has, and I would suggest that any questions would be very simple. I guess the main concern I would have about that, I was explaining about his ability to put himself back where he was at the time of the offending, and remembering what he had been thinking or what his intentions were or what he knew. I think those questions he would have trouble with either way, whether it was evidence-in-chief or under cross-examination, they might be difficult questions for him to answer, but I certainly think that if the courtroom was - yes, if the courtroom had been managed in that way, that would support him.
[7] T33.
She agreed that he was able to put forward a version of events which he believed would assist him. She stated that her concern however was that his low level of intellectual functioning would make it difficult for him where he has to process and deal with new information when responding to questions.
She was then taken through a number of his Facebook communications where alleged admissions against interest were made by him to others. She agreed that upon seeing those messages she was satisfied that he could explain why such a message was sent by him.
She also agreed that the messages revealed a potential in him to give versions of events that suited his particular purposes at the time as well as an understanding of the seriousness of the offences with which he is charged.
They also revealed a certain ability in him to stand up for himself and put a version across to the effect that he had said nothing to police.
She was asked whether his mild intellectual disability meant that in cross-examination he was at more of a disadvantage than the average person or that he was effectively unable to respond appropriately.
She said:[8]
AI think it would depend again on the nature of the complex - the questions and the information that he's having to consider yes. Perhaps with the Facebook messages in front of him he may have the ability to do that and again as his Honour suggested in the courtroom that it's well managed for Mr MacGowan's disability.
[8] T48.
The various facets of the evidence which the DPP would lead were put to her and she agreed that he would be able to understand that evidence and respond with his version of the events and be able to advance his general defence that he had not known what the others were planning.
Finally, in cross-examination she was asked:
QIf questions were asked in a very simple straightforward way, that is something that would assist him.
AYes, certainly and if they were not put in a way that - I don't think he's going to understand information like 'If you assume that', or if you, you know, 'Can I suggest to you that', I think that he will struggle with that and that type of language would lead him - I think he would have difficulty with that. I think he would understand black and white sort of questions that are very concrete and related to the material that's in front of him, as long as he's not getting confused and overwhelmed, yes.
QIn order to assist in the defendant not becoming overwhelmed that is where breaks would be important.
AYes, that as well as, as I mentioned I'm not sure exactly what stress management techniques work for him, if any. Assume the stress management techniques work for him that would help, breaks would help but if he gets emotionally overwhelmed each time he is on the stand then clearly he would have a great deal of trouble with this.
Mr Blanks
He explained in some detail his involvement with Mr MacGowan on a day to day and week to week basis.
It was apparent to me from his evidence that Mr MacGowan has an ability to carry out the typical household tasks such as cooking, cleaning, washing etc but that he requires assistance with more complex matters such as, for example, money management.
He said that he becomes very withdrawn and difficult in the days leading up to court hearings and is clearly very concerned about his prospects of going to gaol.
He noted that during the times he was with him at court he was both agitated and at times confused.
He did acknowledge however that his ability to cope with the stressor that court represents had improved over time.
Discussion
I note at the outset there is a presumption that Mr MacGowan is mentally fit to stand trial. The ultimate question for me to decide is whether Mr MacGowan has displaced that presumption. In other words, has he established on the balance of probabilities that he is unfit to stand trial?
There is no dispute on the evidence, and I am satisfied, in terms of s 269H(a) and (b), that he is quite able to understand and respond rationally to the charge and to exercise his procedural rights.
The issue which was the focus of this application is whether he would be unable to understand the nature of the proceedings or to follow the evidence or the course of the proceedings. Even this issue is somewhat nuanced in that there is no real dispute that with appropriate support he could understand the general nature of the proceedings. What lies at the heart of the application is whether he has the ability to give evidence and more importantly to respond appropriately in cross-examination, which (as Rice DCJ made clear in R v Wahlstedt[9]) is clearly a facet of s 269H(c).
[9] (2003) 231 LSJS 140, 143-144.
It may be accepted that Mr MacGowan’s low level of functioning puts him at a disadvantage when giving evidence compared to the average person. The question remains as to whether this disadvantage is such that for practical purposes he is unable to give evidence?
In considering this question it is important to consider a number of factors.
First, there is the length and complexity of the trial. I would not expect the trial to be lengthy. Arguably it would occupy no more than five days. The factual matrix is relatively simple. Mr MacGowan’s alleged role in the offences is clear as is his apparent defence. From a purely factual point of view, there does not appear to me to be any major impediment to him giving evidence as to his defence or to his understanding of the case for the prosecution.
Secondly, the evidence in the trial is likely to significantly comprise evidence of an audio and visual nature, including Facebook messages which Dr Scamps accepted, and I find, is likely to make it easier for Mr MacGowan to follow and respond to.
Thirdly, even though the concept of joint enterprise lies at the heart of the prosecution case, any legal complexity involved in that concept, which would make it difficult for Mr MacGowan, would apply with similar force to many persons in his position.
Fourthly, I have taken into account when considering the extent of actual disadvantage to Mr MacGowan the manner in which he has demonstrated an ability to advance alternate versions of his conduct to suit his purposes. In my view, this arguably betrays a greater level of insight on his part into his alleged role in these offences than might first be thought and an ability to produce a particular version of events to meet the exigencies of the moment. This capability augurs well, in my view, for his ability to respond to challenging questions in cross-examination.
Finally, it is apparent from the DVD of his arrest that although he was placed in a stressful situation, Mr MacGowan was able to exercise his legal rights, reflect on matters that had occurred in the past (namely as to the pitfalls of speaking to police) and to determine on this occasion to stay silent and also to make plans for the future with respect to his need to get money from his public trustee officer once he got to gaol.
Taking all these matters into account I ultimately disagree with Dr Scamps’ conclusion as to his fitness to stand trial, which even she conceded was only a borderline case. The various versions of his role in these events (be it to Dr Scamps, Facebook correspondents or his co-accused) depict him to have an understanding of his role in the alleged offences, an understanding of the court processes and an ability to put forward a defence and present evidence in support of that defence. In any event, when the entirety of Dr Scamps’ evidence is properly considered, I understood her in truth to be saying that properly managed his trial could proceed with him giving evidence in a way which would not ultimately be unfair to him.
I am satisfied that with appropriate legal support in a trial by judge alone, with that judge alert to his cognitive impairments, monitoring his questioning and taking appropriate breaks, Mr MacGowan can conduct his defence adequately, including by giving evidence both in-chief and in cross-examination.
I am therefore not satisfied on the balance of probabilities that Mr MacGowan is unfit to stand trial for the offences of aggravated robbery and making off without payment.
I acknowledge in so saying that the trial process will be a source of stress and anxiety for him but with his improved coping mechanisms and the procedures outlined above, I am confident that his stress can be appropriately managed.

[2] (1994) 181 CLR 230 at 245; also see R v Gillard [2006] SASC 46 at [40]-[41].