(The Honourable Justice Nyland, The Honourable Justice Sulan and The Honourable Justice Layton)
7 July 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - OTHER MATTERS
CRIMINAL LAW - PROCEDURE - FITNESS TO PLEAD OR BE TRIED
Appeal against a decision rejecting an application by the appellant that he is mentally unfit to stand trial - whether the Judge erred in failing to give adequate weight to the opinions of the two expert witnesses and in deciding that the two psychologists had not applied the appropriate test for mental unfitness to stand trial - consideration of nature of an appeal pursuant to s 269Y of the Criminal Law Consolidation Act - appeal dismissed.
Court of Criminal Appeal: Nyland, Sulan and Layton JJ
NYLAND J: I agree that the appeal should be dismissed for the reasons expressed by Sulan J.
SULAN J: This is an appeal from a decision of a District Court Judge rejecting an application by the appellant that, pursuant to s 269H of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”), the appellant is mentally unfit to stand trial. The appeal raises the issue of the test for determining whether a defendant is mentally unfit to stand trial and, ultimately, whether the trial Judge was correct in declining the application and in concluding that the appellant had not satisfied her, on the balance of probabilities, that he is unfit to stand trial.
Background
The appellant is charged with ten counts of sexual assault. Counts 1 and 2 allege indecent assault with a young girl, JT. Counts 3 to 7 inclusive involve a girl, JM, under the age of 14 years, who it is alleged was indecently assaulted. Counts 8 to 10 involve a boy, KM, under the age of 14, with whom it is alleged the appellant committed two acts of indecent assault, and a later act of gross indecency after the boy had turned 14 but whilst he was under the age of 16. All the offences took place between 1 January 2005 and 24 January 2008.
The facts alleged against the appellant are that, in respect of the complainant, JT, she was touched in the area of her vagina. As to the complainant, JM,…
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.
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Details
AGLC
R v Stevens [2010] SASCFC 1
Case
[2010] SASCFC 1
Decision Date
CaseChat Overview and Summary
The appeal concerned a decision by a judge of the District Court of South Australia to reject an application by the appellant, Mr. Stevens, that he was mentally unfit to stand trial. The appeal was brought pursuant to section 269Y of the *Criminal Law Consolidation Act*.
The primary legal issues before the appellate court were whether the trial judge erred in failing to give adequate weight to the opinions of the two expert witnesses, Dr. White and Mr. Ireland, and whether the judge was correct in concluding that these psychologists had not applied the appropriate test for mental unfitness to stand trial.
The appellate court dismissed the appeal, finding that the trial judge had not erred. The judge had correctly applied the legal test for unfitness, which requires the appellant to establish unfitness on the balance of probabilities. While acknowledging the appellant's mild intellectual disability and reading difficulties, the judge found that the expert witnesses had not fully appreciated the nature of legal representation and the distinction between tactical legal decisions, which require a high level of understanding, and the role of an accused person represented by counsel. The judge concluded that the appellant's responses, both in police interviews and psychological assessments, demonstrated a sufficient level of understanding or potential comprehension to meet the criteria for fitness under section 269H of the *Criminal Law Consolidation Act*, even if he might be disadvantaged at trial. The judge also noted deficiencies in the evidence presented, such as the absence of testimony from former legal representatives regarding any difficulties in obtaining instructions from the appellant.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
She said:[15]I have viewed the videos. Having done so, I agree with the submissions made by the prosecution in regard to those videos and the prosecution criticisms of the opinions expressed by Dr White and Mr Ireland in respect of the content of the videos. Mr Stevens clearly has some impairment and may well have a disadvantage with respect to his trial but I do not agree that these video tapes support the contention that he is unfit to stand trial.The evidence of competence to stand trial[15] Ibid [27].The tests and evaluation of Mr Ireland Mr Ireland concluded that the appellant displayed a mild level of intellectual disability. He had a reading level of Year 2 standard. He has not been able to maintain regular employment and receives a disability support pension. Mr Ireland considered the appellant to be mildly intellectually disabled. Further, Mr Ireland considered the appellant’s ability to grasp conceptual links to be at a lower level than his ability to read. In his report, Mr Ireland concluded:[16]Mr Stevens also reports he has a good deal of experience with the criminal justice system. A review of his understanding of some court processes and legal terms suggested that he had a concrete and descriptive grasp of a number of legal processes and terms. He understood that his lawyer was on his side but had little real idea of how she was trying to help him or how he might help her. He was largely accurate about who is in court and how to challenge evidence by speaking to his lawyer; however again he displayed a lack of conceptual depth in understanding roles and processes. In discussing legal terms it was evident that he could not readily define terms using synonyms or go beyond the concrete level; he often resorted to using the word which he was asked to define in his attempt at explaining the meaning of the word. The clear conclusion to be drawn is that he has only a very descriptive and limited grasp of the meaning of many of these terms.In considering his fitness to plead I concluded that his level of conceptual understanding and vocabulary knowledge severely disadvantages him in terms of his ability to understand and follow the court proceedings, understand and instruct on his procedural rights and therefore understand the seriousness of the charges he faces and respond in an adult like manner.Based on this analysis, I do not consider Mr Stevens to be currently fit to plead and given his mental condition he is highly unlikely to be able to be any fitter to plead at any time in the future.[16] AB 65-6. Mr Ireland agreed that, in arriving at his opinion, he was unaware of the charges against the appellant, nor did he know the nature of the allegations, nor was he aware of the appellant’s response (if any) to the charges. Mr Ireland was asked:[17]Q.So just going back to the answers that Mr Stevens gave, you said that that demonstrates a concreteness, and yet he might show some objective understanding of those answers to the questions. What’s the difference there.A.It demonstrates that he has been through this process before, for a start, that he has some familiarity with legal actions and what’s gone on, but the terms don’t – his definitions of the terms and his responses to the questions put demonstrate that he understands process; that this happens and then this happens and this happens, and that these words go together, such as evidence means police give the evidence. He knows that that goes together in CSI, like everybody else has seen on TV. He knows about those things, there is an association about those things, but there is nothing in his responses that he gave to me that would indicate that he appreciates and he is able to define in his own words in a way that made me believe that he had an abstract grasp of the meaning of those terms and that process.Q.So would that include, when he gives the answer regarding the right to remain silent, what would you say about that – HER HONOUR: Which answer is that?MS WAITE:That’s on page 5.A.I mean, I think my understanding of Mr Stevens is that he has been in trouble with the law forever, from adolescence onwards, for a whole range of different things. He has been through this process. He has learnt that you’re not supposed to say anything when the police tell you you have the right to remain silent. Does he understand the concepts around the right to remain silent are focused on the prosecution having to prove that he is guilty and it’s part of the nature of his defence that he has the right to be considered innocent, and those kinds of concepts – I’m not a lawyer, but those are the sorts of understanding that I have – no, he doesn’t understand those things.[17] T 32-3.
Decision
Reasons for decision
In considering the issues raised in this appeal, I have considered all the evidence and I have drawn my own conclusions. In so doing, I have had regard to the Judge’s findings and conclusions.The decision The Judge correctly observed that the appellant must establish mental unfitness to stand trial on the balance of probabilities. She referred to the test of unfitness as stated by Smith J in Presser. She concluded that the test must be applied in a reasonable and commonsense fashion. Turning to the evidence of the psychologists, Dr White and Mr Ireland, she accepted that the appellant has a level of mental impairment and that his IQ tests identified a mild level of intellectual disability. She referred to the reports of Dr White and Mr Ireland and to their evidence. The evidence established that the appellant has been living independently for many years. He has been on a disability pension since the age of 16. In his residence, there was a computer and mobile phone, both of which he was capable of operating. It appears that the appellant has been employed in various jobs which were of a physical nature and required no training. The appellant had a number of previous convictions. The Judge invited his counsel to consider calling evidence of any prior occasions when he had given instructions to his solicitors, and whether they had had any difficulty in obtaining instructions. No evidence was forthcoming. The Judge noted that, in arriving at their respective opinions, neither psychologist had viewed the videotape of the appellant being arrested and subsequently being interviewed by police. Mr Ireland and Dr White viewed the video after they had completed their evidence. Both provided a written response which was admitted by consent. No further cross-examination was conducted. Both indicated that, having viewed the video, they maintained their conclusion. The Judge noted that there was no real dispute that the appellant had a level of mental impairment and in particular an IQ in the range of 55-69, which is described as a “mild level of intellectual disability” with problems in particular as to reading. The Judge also commented on the fact that Dr White had used a psychometric testing process which was used in the United States, with a different criteria than that which is used and is applicable in Australia. The Judge referred to a number of deficiencies in the material before her. She noted that there was no evidence led from any support person who had worked with the appellant; that there had been no evidence adduced from any persons who had acted for the appellant in the past of any difficulty in taking instructions, advising or acting for him. The Judge had raised her concerns in this regard during the hearing, and granted an adjournment for the appellant’s advisers to consider whether any former legal advisers should be called to give evidence. The passages of the Judge’s reasons which were the subject of criticism are as follows:[14]I agree with the submissions made by the prosecutor generally and specifically with respect to the criticisms of the approach by each of the psychologists. In my view neither of the psychologists properly understood the process of representation in a trial such as this nor the reality of the decisions that an accused person must make. They seem to be confused between the tactical and legal decisions that are made in criminal proceedings which obviously require intelligence and training of high order and the position of an accused person represented by counsel. I note the submissions made on behalf of the applicant with respect to the decisions to be made for a potential separate trials application. I observe that it would be rare for any accused person to understand the legal niceties underlying such an application; that would be a decision made very much as a result of advice from a legal representative. Contrary to the views expressed by the psychologists, I am of the view that the responses given by the applicant in the Police interviews and also the psychological interview processes demonstrate a sufficient level of understanding or potential comprehension such that I am not satisfied of the inability to understand or respond rationally to the various criteria set out in Section 269H CLCA. I accept that Mr Stevens may be disadvantaged at his trial however that is not the test for a finding pursuant to Section 269H CLCA.…[14] R v Stevens [2009] SADC 143, [29].