R v ONDERSTAL
[2021] SADC 104
•7 September 2021
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 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 issue in this case relates to the third limb of this test; the accused’s ability to understand the nature of the proceedings, to follow the evidence or the course of the proceedings.
The test is to be applied in a reasonable and common-sense fashion and is to be considered in the context of the degree of complexity of the charges. Low intelligence is not sufficient for a finding that a person is unfit. There must be an absence of capacity to understand and follow proceedings. The accused must meet certain minimum standards to ensure that he can be tried without unfairness or injustice, but the minimum requirements may not be very difficult to meet.[2]
[2] Eastman v the Queen (2000) 203 CLR 1; R v W, R [2019] SASCFC 33
An accused must have a general understanding of the charges against him. He needs to be able to follow the proceedings in a general sense. He must be able to appreciate the substantial effect of any evidence given against him and to give any necessary instructions to his counsel. He must be able to tell his counsel what his version of facts is and, if necessary, tell the court.[3]
The Evidence
[3] R v Presser (1958) VR 45
Dr Young
Dr Young provided two detailed psychological reports, dated 13 April 2021 and 24 June 2021, which were tendered in evidence. She also gave evidence explaining the opinions set out in those reports. Dr Young is a Professor in Psychology at Flinders University and a Registered Clinical Psychologist. Amongst other things she is a member of the Clinical College of Psychologists and a consultant at Headstart Intervention Services. Dr Young’s experience and expertise was not challenged.
In summary, Dr Young considers that, on the balance of probabilities with considerable assistance from his lawyers, the accused could respond rationally to the charges. She also considers that, again with significant assistance from his lawyers, he could exercise or give rational instructions about the exercise of procedural rights such as the right to challenge jurors. Dr Young however did not think that, even with assistance from his lawyers and special arrangements for the trial, the accused could understand the nature of the proceedings or follow the evidence or the course of proceedings.
Dr Young said that there is a long-standing history of IQ assessments relating to the accused dating back to Year 9. Dr Young explained that within the general population there is a normal distribution of IQ within a mean of 100 and a standard deviation of 15. About 68 percent of the population scores somewhere between 85 and 115. Within the next standard deviation of 15 points, about 98 percent of the population score somewhere between 70 to 130. If someone has an IQ over 130, they are gifted and, if their IQ is below 70, they have an intellectual disability. That is, they are at the bottom 2.1 percent of the population.
The accused’s full-scale IQ is 58. This places him more than 2.5 standard deviations below the mean. To put this another way, his disability sits on or below the first percentile. Accordingly, Dr Young said that if you lined up 100 people, the accused would be less than the first one. The Diagnostic Statistical Manual of Mental Disorder, 5th Edition (DSM-5) classifies this level as a mild to moderate disability assessed within the range of people with an IQ below 70. Dr Young explained the DSM-5 criteria that define a moderate disability. She also described the impact of that disability upon the accused generally and upon his ability to follow proceedings, evidence and to answer questions. Dr Young noted that the accused has been assessed as having a severe receptive language disorder and a severe expressive language disorder arising out of his intellectual disability.
Dr Young said that the accused’s intellectual disability is compounded by his autism spectrum disorder. Autism Spectrum Disorder is defined in DSM-5 as being characterised by impairment in reciprocal social interaction and disordered social skill development, restricted repetitive patterns of behaviour together with a characteristic communication profile. In her first report Dr Young set out, in some detail, the diagnostic criteria for this disorder and the reasons for her opinion that the accused meets these criteria. The accused has experienced these symptoms since early childhood. They make his daily life very difficult. Dr Young said that autism severity can be rated between level 1 and level 3. Level 1 is a person who requires support, level 2 is a person who requires substantial support, and level 3 requires very substantial support. Dr Young says, in her report, that the accused’s results indicate that he meets level 3 for social communication and interaction and level 2 for restricted interests and repetitive behaviours. Dr Young said, in evidence, that these ratings can fluctuate depending upon a person’s stage in life, but she rates the accused as, overall, currently level 2.
Dr Young also administered testing to assess the severity of a range of symptoms suffered by the accused and common to depression, anxiety and stress. The accused’s score in relation to each of these was in the extremely severe range indicating that he is currently suffering a high level of distress. Dr Young does not however indicate what effect these findings have in terms of his ability to participate in a court hearing.
Dr Young said that amongst other things, the accused’s limited intellectual capacity affects his word knowledge. He has difficulty retrieving acquired information, problems with verbal expression, and general difficulties with reasoning and problem solving. He has a weak understanding of practical knowledge and an inability to verbalise meaningful concepts. He cannot link information to abstract concepts or understand conceptual or quantitative concepts. He has a poor working memory and general poor cognitive functioning. The accused’s intellectual capacity is in an extremely low range and he is therefore slower in all areas of conceptual development, social and daily living skills. An individual such as the accused can learn practical life skills allowing him to function in ordinary life with minimal levels of support. He may be able to take care of himself, travel to familiar places in his community, and learn basic skills. However, this level of intellectual disability places the accused at a significant disadvantage in the courtroom. For example, Dr Young said that the accused’s working memory is less than 1% of his peers. Working memory is pivotal to the memory process. If a person cannot retain small bits of information for short periods of time then is does not get into short-term or long-term memory. Likewise, his processing speed, that is his ability to digest and process information, is in the extremely low range as is his verbal comprehension.
Dr Young said that the combination of the accused’s intellectual disability and his autism means that the accused would be unable to follow the evidence, the course of the proceedings, nor could he understand the nature of the proceedings. In consequence, he would not be able to provide proper instructions to his lawyers and he would struggle to give evidence if required.
Dr Young had the opportunity of viewing the recording of the police interview of the accused and the accused giving evidence in court. The police interview was conducted at home with his mother present. Questions were asked directly to the accused. He did not have to follow other things going on around him nor were there any distractions. Dr Young suggested that this scenario was better for the accused than the court room but opined that, even in this less challenging environment, he struggled in several areas.
Dr Young noted that the accused used what she called echolalic speech during the police interview. She described this as picking up expressions used by other people and repeating those expressions in what could be described as a parrot like fashion. Sometimes these expressions can be contextually appropriate and sometimes not. She said this was a key diagnostic feature of his autism spectrum disorder. For example, in his evidence, the accused kept using the expression that his lawyers would “fight for him”. She considered this likely to be something that someone had told him his lawyers would do. In the police interview, he told police that he touched his stepdaughter “inappropriately in the region area” and further said that this was “not acceptable”. These were not words Dr Young would expect the accused to use to describe his conduct. Dr Young was aware however that the accused had spoken with his mother, and possibly also his father, before his mother called the police to report this issue. Whilst not aware of what was said in those conversations, Dr Young said it was likely that the accused had picked up these expressions prior to the police interview and used them without fully understanding what was being said or asked.
When the questions were more complicated or dealt with legal matters or his rights, Dr Young observed that the accused found it difficult to understand and respond appropriately. Dr Young said that, although the accused responded “yeah” and “okay” when certain rights were read to him by police, this did not necessarily mean that he understood what was said. A feature of his disability is a tendency to acquiesce when he did not understand things that were said to him. Dr Young had noted in her dealings with the accused that he will often indicate agreement or understanding in circumstances where he does not understand rather than ask a question because he finds it embarrassing. Dr Young said that when the police checked his understanding by asking him to explain what he understood, it was clear that he did not understand. She referred, for example, to his response when asked to explain the right to silence. It was plain that he did not understand this concept even when it was explained to him a second time in very simple terms by the police officer. Dr Young said that if he could not understand a caution in the one-on-one environment when someone was doing their best to explain it, the accused would struggle even more to follow proceedings in a court room situation. In particular, he would find it difficult to understand questions and evidence and to recognise that people have said things that are incorrect.
Dr Young said that her opinion was reinforced by seeing the accused attempt to give evidence in court. She noted that, even talking about something he was interested in, such as cartoons, the accused struggled. He had difficulty recalling his favourite cartoons “Looney Tunes” and could not say much about them. Normally he would enjoy speaking about this topic and do so at length.
Dr Young concluded her evidence in chief by stating her opinion that, on the balance of probability, the accused could not fully participate in the court process in view of his intellectual disability compounded by his receptive and expressive language disorders, his hearing impairments and his autism.
In cross examination, it was put to Dr Young that there were various ways of ameliorating the difficulties the accused may have in following the evidence and the proceedings. For example, it was suggested that before the prosecution called a witness, his counsel could spend some time with the accused and explain what was going to happen. The same procedure could be adopted when the witness finished giving evidence in chief. Dr Young did not agree that any of the procedures suggested would resolve the problems with the accused’s understanding of the proceedings. Even with a detailed explanation, Dr Young said that he would not be capable of understanding what was going to happen next or what had just happened. She explained the reasons for her opinion by reference to various things she had tried to explain to him which he had simply not understood or subsequently forgot. Further, Dr Young said that it is challenging to know when the accused has not understood something because in her experience he would often say, yes, he understood something, even if he had not. This would make it difficult for his lawyers to assess whether he had in fact understood something and whether the instructions they had received were accurate or reliable.
Dr Young agreed that the accused appeared to be able to answer some of the police questions about the allegations in an ostensibly accurate manner, but she noted that there were some difficulties with his memory about certain aspects of the history. In the interview, the accused agreed that he had touched one child and was able to explain how and, in broad terms, when that happened. It was put to Dr Young that the accused was also able to disagree when the police suggested he had interfered with other children suggesting that he was not simply acquiescing to all that was put to him. Dr Young agreed that this was the case but said that, given the language used by the police, it was not possible to say if his answer was accurate. She said that it was possible that the accused may have taken the question literally in the way that she explained and had not fully understood what was being asked. Dr Young said that the accused’s evidence was a more accurate reflection of his abilities than the police interview although there were several areas of concern with the police interview in terms of his comprehension of questions and the validity of some of his responses.
Dr Young agreed that there will be some parts of the proceedings that the accused will understand, some parts of the evidence that he will be able to follow and some parts of the course of proceedings that he will be able to follow particularly if he is given the opportunity to confer regularly with his lawyer. She said however that he has a very poor working memory which would require breaks after a very short duration of evidence. He can retain some information but there will be a plethora of information produced in court with the likely use of technical terms that he would find difficult, if not impossible, to understand and retain. She did not accept that a summary from his lawyer would assist him to follow proceedings and evidence in the light of her experience of trying to get the accused to understand things. Whilst he could follow and understand some aspects of the proceedings and evidence, she considered that he would not be able to follow and understand a substantial portion of it.
The Accused’s Mother
The accused’s mother gave evidence. She has provided considerable assistance and support to her son since birth. She provided information to police and to Dr Young about the impact of her son’s disabilities upon his day to day life. She has been present on all occasions when the accused has seen Dr Young, his solicitor and counsel. She confirmed that each of these three people had explained the court process and what happens in court to her son. She also said that his lawyers had explained the purpose of this hearing and specifically what a fitness to stand trial application was. She herself had tried to explain the court process to her son on more than one occasion. He did not appear to understand these explanations.
The Accused
The accused gave evidence. He sat in the witness box with a ball that he continually manipulated with his hand. This is apparently a means by which he can cope with his anxiety. He swore an oath on the Bible but when asked what he was doing when he had his hand on the Bible, he said he did not know. When asked what the Bible was, he said, “It’s something people read”. When asked what he thought it was about he said he thought it was about God. When asked what he knew about God he pointed upwards and said that God “was in the sky, looking over us”. He was asked what it meant to give evidence. He did not know. He was asked what he was doing sitting in the chair and talking. He responded, ‘talking to you, answering questions.’ He did not know why he was doing that. He could not explain the concepts of a lie or the truth.
Although this was not a full competence enquiry, it seems unlikely that the accused would be able to give sworn evidence given it does not appear that he has a sufficient understanding of the obligation to be truthful.[4] Having said this, I did not detect any effort on his part to mislead the court as to his abilities. He appeared to be doing his best to follow and respond to questions that were asked of him.
[4] Section 9 Evidence Act 1929
The accused had a basic understanding of the allegations against him and said that was why he was in court. He could state the name of one of the offences with which he is charged. He said he found that out from his lawyer, but he was not sure what it meant. He did not understand that the purpose of the hearing was to determine his fitness to stand trial for the charged offences. He denied that anyone had tried to explain this to him.
He expressed a very limited understanding of who the people in the court were and what their respective roles were. He said that his lawyer’s job was to ‘fight for him’. He did not understand the role of anyone else. He was unable to explain basic concepts such as trial by jury, trial by judge alone, giving evidence or what “guilty” meant.
He was asked about the witness box and what it meant to give evidence as follows:[5]
[5] TX [15-17]
Q.Do you understand from where you're sitting what that is called.
A.No.
Q.That box there, do you understand what it's called.
A.No.
Q.Is it called 'the witness box'.
A.Yes.
Q.How do you know that.
A.Because you told me.
Q.Do you think at this moment you might be a witness, or not.
A.I don't know.
Q.First of all, what is your understanding of the word 'trial' if you do have one.
A.I don't know that question.
Q.In relation to you answering questions in court, do you believe that you have to answer questions, or do you think that you don't have to answer questions.
A.I have to.
Q.Why do you say that.
A.Not sure.
Q.Let me ask you this: in relation to that witness box, did you think that you have to get in that witness box during the court proceedings, or not.
A.Yes, because you told me to do it.
Q.What if I hadn't told you to do it, would you believe that you had to get in that witness box.
A.No.
Q.Why is that.
A.I don't know.
Q.Is anybody going to get in that witness box and be asked questions who are going to support you, do you know.
A.No.
Q.What about Dr Robyn Young, is she going to get in that witness box.
A.I think so, yeah.
Q.How do you know that.
A.Because you said to.
Q.What do you think she will be doing in that witness box.
A.Answering questions.
Q.Questions from who.
A.From you.
Q.Anybody else do you think might be asking her some questions.
A.No.
Q.You don't think anybody else will be asking her questions.
A.No.
The accused was asked several questions about his interview with police. He had just seen it played in court, but it was plain that he could not remember aspects of it, nor did he understand questions that were put to him about that interview. It was also clear that, although he told police he understood certain things such as aspects of the caution, he did not in fact understand those things.
The accused said that he spoke to his mother before the police interview and that she explained things to him, including what he had done wrong. He was then asked as follows: [6]
[6] TX [20-21]
Q.Did she spend much time speaking to you about what you had done wrong.
A.Yeah.
Q.After you gave that answer ''Cos I touched my stepdaughter inappropriately in the region area', the lady police officer then said 'Mm', and you said 'That it's not acceptable to do stuff like that'. Now, was that your answer.
A.Yes.
Q.What did you mean by that.
A.Not sure.
Q.Can you tell us why you gave that answer.
A.Yes, that's what mum said.
Q.And what had your mum said about that.
A.I can't remember.
Conclusion
Dr Young considers that the accused can respond to the charges and exercise or give rational instructions concerning the exercise of his procedural rights if he is given considerable assistance by his legal representatives. This means, as conceded by defence, that the accused does not satisfy the first two limbs of the test in s269H.
Dr Young thought however that the accused did satisfy the third limb of the test due to his intellectual disability compounded by features of his autism. The test is a high threshold as the case law makes plain.[7] The accused must not just find it difficult to understand the nature of proceedings, or to follow the evidence or the course of proceedings; he must be unable to do so.[8]
[7] R v Presser [1958] VR 45; Ngatayi v The Queen (1980) 147 CLR 1; Kesavarajah v The Queen (1994) 181 CLR 230
[8] R v Hayles (2018) SASCFC 58; R v W, R [2019] SASCFC 33
The accused has a very significant intellectual disability placing him on or below the first percentile of the population. The disability causes him to suffer a range of impairments as indicated in Dr Young’s evidence but, of particular relevance, it has caused a severe receptive and a severe expressive language disorder. This disability is compounded by his hearing loss and his autism spectrum disorder which further impact his ability to understand what is going on around him and his ability to communicate.
In the police interview, whilst the accused did not understand his rights as they were explained to him, he demonstrates an apparent capacity to respond appropriately to some questions about one of the charged offences. The accused’s mother was present for the whole of the interview. This was inappropriate given she had called the police in the first place and may well be a witness. The interview would likely be excluded from his trial but, for present purposes, the concern is how the presence of the accused’s mother impacted upon his performance in the interview. There was a discussion between the accused and his mother prior to the interview in which she explained what he had done wrong. Dr Young gave evidence that she detected echolalic responses on the part of the accused in that he used expressions she would not normally expect. She also gave evidence that the accused was easily manipulated or acquiescent. Whilst no doubt his mother acted with the best intentions; it seems likely that her discussion with the accused prior to the police interview coloured the way in which the accused responded to police questions. Further, no doubt having his mother present and being interviewed in the home environment, made the accused more comfortable and less distracted. All he had to focus on was the police officer asking questions. His understanding of the process was, as he articulated to the police officer, that he was to “..try my best to do whatever I can for yous (sic).”
For these reasons, I accept Dr Young’s opinion that the accused’s performance in the witness box is a more accurate reflection of his abilities. My observations are that he struggled to follow and answer simple questions in a manner that was not apparent in the police interview. There were hesitations, inconsistencies and non-responsive answers. He was visibly distracted from time to time. The deficiencies in his comprehension and processing abilities were manifest. Likewise, there were several examples of the limitations of his working memory. He could not recall aspects of the police interview that was played shortly before his evidence. Further, he was unable to explain the nature of the proceedings, the role of the various people in the court room or what was to happen in court.
It is relevant to consider the nature of the proceedings that the accused faces. He is legally represented, but despite having the charges and the court process explained to him on several occasions, the accused does not comprehend either. The allegations that form the basis of the charges against him are not particularly difficult to follow but the charged offences and the elements of those offences are complex. There are, moreover, four complainants which will lead to complex issues of cross-admissibility and discreditable conduct. There are also likely to be other complex legal issues such as complaint evidence and delay. The trial would inevitably be lengthy. I note that the prosecution estimate of its case is 5 – 7 days. The trial would involve a great deal of evidence together with complex submissions.
Having carefully considered the submissions and the evidence I am satisfied that, 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. Whilst some aspects of the conduct of the trial could be modified to accommodate the accused’s disabilities, I do not believe that this would be sufficient to ensure that the accused could be tried without injustice or unfairness.
I find that the accused is not fit to stand trial.
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