R v ONDERSTAL - [2021] SADC 104

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v ONDERSTAL
[2021] SADC 104
Reasons for Ruling of her Honour Judge McIntyre
7 September 2021
CRIMINAL LAW - PROCEDURE - FITNESS TO PLEAD OR BE TRIED
Investigation under Division 3, part 8A of the Criminal Law Consolidation Act 1935 (CLCA) into the accused’s fitness to stand trial for two counts of maintaining an unlawful sexual relationship with a child and two counts of aggravated indecent assault. The accused has autism spectrum disorder, an intellectual disability, a severe receptive language disorder, a severe expressive language disorder and a moderate bilateral hearing loss for which he wears hearing aids.
Held:
(i) On the balance of probabilities, the combination of disabilities suffered by the accused is sufficient to deprive him of the ability to understand the nature of the proceedings, to follow the evidence and the course of proceedings. He does not meet the minimum requirements for a fair trial.
(ii) The accused is not fit to stand trial.
Criminal Law Consolidation Act 1935 (SA) Division 3, Part 8A; s 269H, s 269(i); Evidence Act 1929 (SA) s 9, referred to.
Eastman v The Queen (2000) 203 CLR 1; R v W, R [2019] SASCFC 33; R v Presser (1958) VR 45; Ngatayi v The Queen (1980) 147 CLR 1; Kesavarajah v The Queen (1994) 181 CLR 230; R v Hayles (2018) SASCFC 58, applied.

R v ONDERSTAL
[2021] SADC 104

The accused has been charged with two counts of maintaining an unlawful sexual relationship with a child and two counts of aggravated indecent assault. A question has arisen as to his fitness to stand trial due to a combination of conditions. In brief, the accused has autism spectrum disorder, an intellectual disability, a severe receptive language disorder, a severe expressive language disorder and a moderate bilateral hearing loss for which he wears hearing aids. He is currently on a disability support pension and is a participant under the National Disability Insurance Scheme (NDIS).
I conducted an investigation into that issue under Division 3, part 8A of the Criminal Law Consolidation Act 1935 (CLCA). I heard evidence from the accused, his mother and his treating psychologist Dr Robyn Young. In addition, I received evidence of the police interview with the accused on 26 June 2020.
The Law
An accused person is presumed to be fit to stand trial unless that person rebuts the presumption on the balance of probabilities.[1]
[1] Section 269 (i) of the CLCA
Section 269H sets out the test of fitness to stand trial as follows:
Division 3—Mental unfitness to stand trial
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…

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 ONDERSTAL

Details

AGLC: R v ONDERSTAL [2021] SADC 104
Case: [2021] SADC 104
Decision Date: 7 September 2021

CaseChat Overview and Summary

In the case before the court, the respondent, who is also the accused, faces charges of maintaining an unlawful sexual relationship with a child and aggravated indecent assault. The respondent suffers from multiple disabilities including autism spectrum disorder, an intellectual disability, severe receptive and expressive language disorders, and moderate bilateral hearing loss. The respondent's fitness to stand trial was the primary issue in this case, which was heard in the Supreme Court of South Australia. The prosecution sought an investigation into the respondent's fitness to be tried under Division 3, Part 8A of the Criminal Law Consolidation Act 1935.

The legal issues the court had to decide involved whether the respondent's combination of disabilities was sufficient to prevent him from understanding the nature of the proceedings, following the evidence, and the course of the trial. The court had to assess if the respondent met the minimum requirements for a fair trial. The respondent's disabilities, particularly his severe language disorders and hearing loss, were central to the determination of his fitness to stand trial.

The court concluded that the respondent's disabilities, when considered together, sufficiently impaired his ability to understand the proceedings and follow the evidence. The court held that on the balance of probabilities, the respondent did not meet the minimum requirements for a fair trial. Therefore, the court ruled that the respondent was not fit to stand trial. This decision mandated an investigation into the respondent's fitness to be tried.

The court ordered an investigation under Division 3, Part 8A of the Criminal Law Consolidation Act 1935 to further assess the respondent's fitness to stand trial. This investigation is necessary to determine the appropriate steps to ensure a fair trial, considering the respondent's disabilities. The court's decision underscores the importance of ensuring that individuals with significant disabilities receive a fair trial, and highlights the need for appropriate measures to accommodate such individuals within the criminal justice system.

Orders

Orders of the court

Investigation under Division 3, part 8A of the Criminal Law Consolidation Act 1935 (CLCA) into the accused’s fitness to stand trial for two counts of maintaining an unlawful sexual relationship with a child and two counts of aggravated indecent assault. The accused has autism spectrum disorder, an intellectual disability, a severe receptive language disorder, a severe expressive language disorder and a moderate bilateral hearing loss for which he wears hearing aids.

Held:

(i) On the balance of probabilities, the combination of disabilities suffered by the accused is sufficient to deprive him of the ability to understand the nature of the proceedings, to follow the evidence and the course of proceedings. He does not meet the minimum requirements for a fair trial.

(ii) The accused is not fit to stand trial.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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