R v Stevens - [2010] SASCFC 1

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v STEVENS
[2010] SASCFC 1
Judgment of The Court of Criminal Appeal
(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.
Criminal Law Consolidation Act 1935 (SA) s 269H, s 269J, s 269M, s 269Y; Magistrates Court Act 1991 (SA) s 42, referred to.
R v Presser [1958] VR 45; Kesavarajah v The Queen (1994) 181 CLR 230; Ngatayi v The Queen (1980) 147 CLR 1, applied.
R v Abdulla (2000) 93 SASR 208, discussed.
Taylor v Hayes (1990) 53 SASR 282; Coghlan v Cumberland [1898] 1 Ch 704; Fox v Percy (2003) 214 CLR 118; CSR v Della Maddalena (2006) 80 ALJR 458; R v Leach [2002] SASC 321, considered.

R v STEVENS
[2010] SASCFC 1
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, it is alleged that the appellant, when he was looking after her and other children, followed her into a bathroom and touched her in the area of the vagina. There is also an allegation that he placed his penis between her legs. As to KM, it is alleged that the appellant masturbated in his presence and, on two occasions, placed his penis between the legs of the complainant and rubbed his penis in that area.
Upon the application of the appellant, the trial Judge made an order pursuant to s 269J of the CLCA that there be an investigation into the appellant’s mental fitness to stand trial. A determination of the issue as to whether the appellant is mentally fit to stand trial proceeded, in accordance with s 269M of the CLCA.
The Judge observed that, pursuant to s 269I, a person is presumed to be mentally fit to stand trial unless it is established to the contrary, following an investigation under Division 2 of Part 8A. A judge must be satisfied on the balance of probabilities that a defendant is mentally unfit to stand trial before making a finding to that effect.[1]
[1] R v Leach [2002] SASC 321.
Section 269H of the CLCA provides:
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.
In R v Abdulla,[2] Duggan J traced the common law history of fitness to stand trial in England. He observed that the purpose of the common law and any relevant legislation, as it developed in Australia, was to ensure that a trial would not be rendered unfair by reason of the inability of the accused person to participate in the trial in an appropriate manner. Secondly, that the test of unfitness was expressed in a practical manner which had regard to those facets of the trial which required an understanding of, and participation by, the accused. Thirdly, that emphasis was placed on the accused’s cognitive ability and any impairment to that ability, whether resulting from a physical or mental condition. Fourthly, that unfitness to stand trial could occur as a result of an accused being unable to hear and speak.
[2] (2000) 93 SASR 208, [16] – [19].
Duggan J observed that, in interpreting the legislative provisions, regard must be had to the common law and its development over many years in the United Kingdom and in South Australia.
Besanko J agreed with Duggan J. He observed that the phrase “mental processes” in s 269H should be given a wide meaning, which would include the ability to receive information, and to process and respond to it.
In R v Presser,[3] Smith J discussed the position in Victoria in the following terms:[4]
[The accused needs] 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 the 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.
[3] [1958] VR 45.
[4] Ibid, 48.
In Kesavarajah v The Queen,[5] Mason CJ, Toohey and Gaudron JJ approved the statement of Smith J in Presser. They observed that, in order for a person to be fit to stand trial, the defendant must be able to; understand the nature of the charge, plead to the charge and exercise the right of challenge, understand the nature of the proceedings, follow the course of those proceedings, understand the substantial effect of any evidence that may be given in support of the prosecution and make a defence or answer to the charge.[6]
[5] (1994) 181 CLR 230.
[6] Ibid, 245.
It follows that the test as enunciated in Presser and considered by the High Court in Kesavarajah and also in Ngatayi v The Queen,[7] are relevant in considering fitness to stand trial.
[7] (1980) 147 CLR 1, 8.
In her reasons, the trial Judge applied Presser. She observed that the test is to be applied in a reasonable and commonsense fashion. In reconsidering the question, I have had regard to the test of fitness to plead as stated in Presser, Kesavarajah and Abdulla.
The nature of an appeal pursuant to s 269Y
An appeal lies pursuant to s 269Y of the CLCA, which provides:
Appeals
(1)     An appeal lies to the appropriate appellate court against a declaration that a defendant is liable to supervision under this Part in the same way as an appeal against a conviction.
(2)     An appeal lies to the appropriate appellate court against a supervision order in the same way as an appeal against sentence.
(3)     An appeal lies with the permission of the court of trial or the appropriate appellate court against a key decision by the court of trial.
(4)     A key decision is –
(a)a decision that the defendant was, or was not, mentally competent to commit the offence charged against the defendant; or
(b)a decision that the defendant is, or is not, mentally unfit to stand trial; or
(c)a decision that the objective elements of an offence are established against the defendant.
(5)     On an appeal, the appellate court may exercise one or more of the following powers:
(a)confirm, set aside, vary or reverse a decision of the court of trial;
(b)direct a retrial of the case or an issue arising in the case;
(c)make any finding or exercise any power that could have been made or exercised by the court of trial;
(d)make ancillary orders and directions.
Pursuant to s 269Y (3) and (4)(b), permission of the appellate court is required against a decision that the defendant is not mentally unfit to stand trial. On 1 February 2010, a Judge of this Court granted the appellant permission to appeal.
Section 269Y (5) provides that the appellate court may, in addition to setting aside, varying or reversing a decision of the court of trial, make any finding or exercise any power that could have been made or exercised by the court of trial, and make any ancillary orders and directions.
It follows that the powers vested in this Court are greater in their ambit than those of the Court of Criminal Appeal hearing an appeal pursuant to s 353 of the CLCA, which is an appeal in the strict sense.
The powers vested in the Supreme Court by s 269Y(5) equate more with those vested in the Supreme Court, pursuant to s 42(5) of the Magistrates Court Act 1991. That section provides:
On the hearing of the appeal, the appellate court may exercise any one or more of the following powers:
(a)     it may confirm, vary or quash the judgment subject to the appeal and, if the Court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings;
(b)     it may remit the case for hearing or further hearing before the Magistrates Court;
(c)     it may make any other order (including an order for costs) that may be necessary or desirable in the circumstances.
Section 42(5) has been interpreted as requiring a “rehearing” in the traditional sense. The Court must reconsider the materials before the trial Judge along with such other materials as it may decide to admit, and then make up its own mind. However, the Court is not to disregard the judgment appealed from, but must carefully weigh and consider it. If, on full consideration, the Court concludes that the judgment was wrong, then the Court must overrule it.
In Taylor v Hayes,[8] Perry J reviewed a number of authorities which dealt with appeals by way of re-hearing. He referred to the dicta of Linley MR, Rigby and Collins LJJ in Coghlan v Cumberland, in which the Court said: [9]
The case was not tried with a jury, and the appeal from the judge is not governed by the rules applicable to new trials after a trial and verdict by a jury. Even where, as in this case, the appeal turns on a question of fact, the court of Appeal has to bear in mind that its duty is to rehear the case, and the court must reconsider the materials before the judge with such other materials as it may have decided to admit. The court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the court comes to the conclusion that the judgment is wrong. When, as often happens, much turns on the relative credibility of witnesses who have been examined and cross-examined before the judge, the court is sensible of the great advantage he has had in seeing and hearing them. It is often very difficult to estimate correctly the relative credibility of witnesses from written depositions; and when the question arises which witness is to be believed rather than another, and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may shew whether a statement is credible or not; and these circumstances may warrant the court in differing from the judge, even on a question of fact turning on the credibility of witnesses whom the court has not seen.
[8] (1990) 53 SASR 282.
[9] [1898] 1 Ch 704, as cited in Taylor v Hayes (1990) 53 SASR 282, 290 per Perry J.
In Fox v Percy,[10] Gleeson CJ, Gummow and Kirby JJ discussed the nature of a re-hearing. They observed that a re-hearing does not involve a completely fresh hearing of all the evidence by the appellate court, and that the court proceeds on the basis of the record. They observed:[11]
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”. In Warren v Coombes, the majority of this Court reiterated the rule that:
“[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.”
As this Court there said, that approach was “not only sound in law, but beneficial in … operation”. (Citations omitted)
[10] (2003) 214 CLR 118.
[11] Ibid, 126-27.
Callinan J adopted a similar approach to the majority in Fox v Percy. He said:[12]
… The vast majority of the cases tried in this country are tried by judges sitting alone and depend upon their facts rather than upon the application of complex legal principles. To impose an unduly high barrier, and not one sanctioned by the enactment conferring the right of appeal would be to deny recourse by litigants to what the Parliament of the State has said they should have. Judges are fallible on issues of fact as well as of law; sometimes they are obliged to work under a great deal of pressure, and sometimes they are denied a timely transcript. In the days when rights of appeal were first enacted, notes and transcripts were much less complete and reliable than they now are. And today courts of first instance, in some jurisdictions at least, rely heavily on written statements, certainly of the evidence in chief, the oral adducing of which might on occasions have been as, or even more revealing than, evidence adduced from an honest but inarticulate or nervous witness in cross-examination. Occasional errors of fact are bound to be made. No litigant should be expected to accept with equanimity that his or her right of appeal to an intermediate court is of much less utility because it goes to a factual error that can be explained away by a judge-made rule, than an appeal on a question of law: or that although the trial judge was wrong on the facts, there was no incontrovertible fact against which the judge’s error could be measured …
[12] Ibid 165.
In CSR v Della Maddalena, Gleeson CJ said:[13]
In Fox v Percy there was an important change in the statement by this Court of the jurisdiction and powers of intermediate appellate courts. Like many other principles re-expressed by this Court in recent years, the change was one founded in a close analysis of the statutory provisions governing the legal task in issue. It involved a shift to some degree from the more extreme judicial statements commanding deference to the findings of primary judges said to be based on credibility assessments. It involved a reminder of the obligations of the appellate court, so far as it properly could, to perform its statutory functions of appellate review by way of rehearing, in a real and substantive way as the enacted law mandates.
[13] (2006) 80 ALJR 458, 465.
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].
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.
In cross-examination, he was asked:[18]
Q.To move back to Mr Stevens for a moment, following from your assessment of him, would Mr Stevens have the capacity, presented with options about pleading guilty or pleading not guilty, to make a choice between courses of action.
A.My argument is merely that he doesn’t understand the conceptual wrap-arounds of those various options, so that what you’re going to wind up with is a person who is disadvantaged by the fact of his intellectual problems in making those kinds of choices having a genuine dialogue with his lawyer, so that’s how I understand the meaning of 269.
Q.But the question really is, though: does he have the capacity to understand options that are presented to him.
A.Well, we’re talking about whether he has – what is his level of understanding? And my report, my assessment of this man is that he certainly has the ability to talk to you, to understand concrete events and to think in concrete terms, but he certainly doesn’t display the kind of level of intellectual functioning you would expect from a young adolescent, that is the ability – and onwards of course – that is to anticipate and understand people’s reactions, to conceptually think about what he’s saying or doing. He doesn’t have that. So to the extent that that’s a key part of the legal process, then he doesn’t meet that criteria.
[18] T58-9.
When Mr Ireland gave his evidence and arrived at his opinion, he had not viewed the video tape of the arrest and subsequent interview of the appellant. The video tape was provided to him. Mr Ireland provided a written response which was admitted into evidence, by agreement. The prosecutor did not seek to further cross-examine Mr Ireland.
Mr Ireland made a number of observations. The observations are Mr Ireland’s interpretation of the appellant’s responses and reactions to questions put to him, and his reaction to the police seeking to handcuff him.
Mr Ireland made a number of observations about statements made by the appellant, both at the time of his arrest and later when interviewed. Mr Ireland contended that, from his observations, the appellant’s responses to the circumstances of his arrest and to questions he was asked demonstrate that the appellant did not understand his arrest rights, nor did he appreciate the seriousness of the allegations and, instead, he behaved in a passive, simple‑minded, child-like and highly compliant manner with “Yes” to almost everything asked of him, whether he understood it or not. Mr Ireland noted that his initial opinion remained unchanged.
During the interview, the appellant was informed he could make a telephone call. The appellant understood he could make a phone call. He spoke to a solicitor from Legal Aid. He was asked by the investigating officer:[19]
[19] Record of Interview, 2 June 2008, MJS2A, 6-7.
SENIOR CONSTABLE SWANDALE
QAnd than that, as a result of legal aid contacting you alright. Um, I believe that was Jodie McRAE
AYes
QWho spoke to you. You then had a conversation with her, we’ve left the room while you’ve had a conversation and then during that time the video was stopped and that was not recorded at all. We’ve since spoken to Jodie after your conversation and she advised us just to tell you what you’ve been charged with and can you tell me what she advised you.
ANot to say anything. When I get legal advice on the proper legal aid
QOkay. So based on that we won’t be asking you any questions, alright. So do you agree that’s the only conversation so far.
AYes.
QWhen we stopped the video is, while we stopped it and we’ve.
AYes.
QHad no conversation in regards to any of the allegations. Is that correct.
AThat’s correct.
QOkay. Um, what I’ll, Mick I’ll go through the, the charges and I’ll just tell you what you’re going to be charged with.
AYep.
QOkay. The charges are two counts of Aggravated Unlawful Sexual Intercourse, Gross Indecency, again two counts of Aggravated Unlawful Sexual Intercourse and Indecent Assault and one count of Indecent Assault So do you understand those allegations. They’re the charges, they’re not the allegations as advised by legal aid they said just to advise you what you’ve been charged with.
AYep.
QAlright. Now this is a form that if you wish to obtain a copy of the video tape that we’ve had today this is how you go about it. So you can keep that form, there is a fee involved but when you go see your lawyer give that to them.
AYep. Do I have to sign it.
QNo that’s for you, that’s for you to keep, okay.
AI normally sign papers.
SENIOR CONSTABLE COLLISE
QDownstairs
SENIOR CONSTABLE SWANDALE
QDownstairs when we ah, at the cells but that’s just for you to give to your lawyer okay. Thanks. So the time is 5.55 pm and the main video recorder is stopping.
Mr Ireland suggests that the appellant’s question to the police about whether he is required to sign the charge sheet demonstrates his lack of understanding. This is Mr Ireland’s interpretation of the appellant’s responses during the interview. Mr Ireland did not have any information about the nature of the allegations, nor any information about the appellant’s version of events.[20]
[20] T52-54, 60.
Having viewed the video, in my view there was nothing about the appellant’s demeanour or responses to questions which suggest that he did not comprehend the question, or that he was unable to respond to them.
Evaluation and testing by Dr White
Dr White acknowledged that it would be important to have regard to the specific charges that a subject was facing. He did not know of and did not explore any of the factual allegations with regard to the charges laid against the appellant.
Dr White conducted a number of psychological tests, including a test known as “The Evaluation of Competency to Stand Trial – Revised”. This is a test which was developed in the United States of America. Dr White concluded that, due to the appellant’s limited intellectual ability, he is incapable of grasping concepts relating to court matters. Dr White concluded:[21]
He is incapable of grasping concepts related to court matters. He has some basic understanding of certain things i.e. knows that his lawyer is there to help him – but can not explain how the lawyer does this, nor does he understand the basic concept that his lawyer represents him in the court. While he understands that a prosecutor “prosecutes the case”, he does not know what this means and what is the role of the prosecution. Mr Stephens [sic] has a very basic understanding of people involved in a trial (i.e. judge and jury) and a very basic understanding of what is involved in a trial. He does not appear to grasp the seriousness of his charges, nor what “going to trial” implies. Due to his low level of intellectual ability, he has difficulty with both expressive and receptive language. He has difficulty speaking and understanding what is being communicated. He can grasp only general simple concepts. While he may repeat what he has been told, he is unable to grasp the meaning of the information. Mr Stephens’ [sic] inability to accurately process information and communicate effectively with other people remains the primary obstacle affecting his capacity and ‘fitness’ to stand trial.
It is therefore concluded that taking into account Mr Stephens’ [sic] cognitive impairment (intellectual disability) and the relevant guidelines for ‘unfitness’ (section 269h) Mr Stephens [sic] is ‘unfit to plead’.
[21] AB 81-2.
Dr White had not viewed the videos of the appellant’s arrest and interview when he formed his opinion. As with Mr Ireland, he viewed them after he had completed his evidence. An email from Dr White was admitted without objection by counsel in which Dr White stated:
As requested I reviewed the video tapes provided. The material did not provide any information that would change my opinion regarding Mr Stevens’ fitness status.
The trial Judge concluded that both psychologists had not addressed the correct questions. She observed that they had not appeared to have considered in any detailed way the criteria referred to in Presser. They concerned themselves with more complex issues relating to tactical decisions, legal questions and the appellant’s cognitive abilities, rather than the more practical issues referred to in Presser.
The questions which do not appear to have been addressed are the appellant’s understanding of that with which he had been charged, his ability to plead, his ability to instruct counsel about his right to challenge, other more practical matters such as his understanding of the proceedings, his ability to follow the proceedings in general, and to follow the course of the proceedings.
The appeal
The appellant complains that the Judge failed to give adequate weight to the opinions of the two expert witnesses. It is submitted that the Judge was in error in that she wrongly decided that the two psychologists had not applied the appropriate test for mental unfitness to stand trial. Secondly, it is submitted that the Judge wrongly formed her own opinion to reject the opinions of the two experts without giving adequate reasons.
An underlying submission put by the appellant to the second of these arguments is that both psychologists had made an assessment of the appellant not merely as having a low IQ, but that his function tests, which had been scientifically applied and not subject to question, demonstrated that the appellant lacked an ability to understand abstract conceptual matters. Accordingly, the Judge should not have substituted her own assessment of the appellant based on two video interviews, in lieu of the assessment of the two experts of that same video material.
It is submitted that as a consequence of the psychological assessments, the appellant would not be able to appropriately give instructions to counsel, or understand the court’s processes or give evidence in court in his own defence.
Counsel for the respondent, the Solicitor-General, contends that the Judge did not err in concluding that the psychologists’ assessments were wrong. Additionally, the Solicitor-General contends that regardless of whether or not the judge on viewing the interview inappropriately substituted her view for that of the psychologists, the appellant had not proved its case.
The Solicitor-General submits that the evidence was deficient in a number of ways. First, that the psychologists did not have before them any information as to the particulars of the charges, which are simple to comprehend so far as a factual scenario is concerned. It involves indecent assault and masturbation in relation to juveniles. The three children involved were siblings and the appellant from time-to-time looked after them. There was no evidence that the appellant could not give instructions as to whether or not he touched the children inappropriately, and whether he did or did not commit the acts alleged. It is contended that the psychologists did not address their minds to the correct test for fitness to plead. It is specific offences to which the test is directed. Secondly, it is submitted that at no time were the expert witnesses properly briefed for the purposes of giving an expert opinion. The assumptions upon which their opinion is based was not clearly stated. Thirdly, it is submitted that the psychologists had endeavoured to answer the question that the Court must ultimately decide without addressing the correct test.
The Solicitor-General submits that it is not necessary for a judge to accept opinions of psychologists with regard to unfitness to plead. It is a legal question which is required to be decided having regard to the facts and circumstances.
It is submitted that the Judge was not in error in rejecting the evidence of the psychologists on the ground that they had not applied the test pursuant to s 269H.
Conclusion
It is to be noted that the preamble and the wording of s 269H(a) and (c) indicate that the question of a person’s fitness to stand trial is required to be determined having regard to the charge and the allegations on which the charge is based. Mental unfitness is not to be regarded as an abstract concept. Some offences are more complicated to understand than others. There is a need when considering unfitness to stand trial that the particular charges and offences be considered when applying the test set out in s 269H. Both Mr Ireland and Dr White failed to address this question.
There is little doubt that the appellant is of low intelligence. He suffers from disadvantages that are not uncommon amongst many charged with criminal offences. 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.

This Court has viewed the video recordings of the arrest and interview of the appellant. In my view, the appellant’s responses demonstrate an understanding of the circumstances which had caused the police to attend at his home, arrest him and interview him. There was nothing that suggested that the appellant lacked sufficient cognitive ability to understand what was occurring, what his rights were and the nature of the allegations. I do not accept Mr Ireland’s assertions that the appellant did not understand his arrest rights.
The Judge was correct in regarding herself as being in a position to assess the appellant’s general capacity to understand and answer questions. Whilst certain aspects of behaviour are well within the province of a psychologist, there are some aspects of human behaviour that can be assessed by a Judge. It is well recognised that the determination of whether a person is fit to plead is not simply a question for determination by an expert. In considering a person’s fitness to plead, the court will have regard to any medical or psychological evaluation of the person. The opinions of experts are but one factor which the court must evaluate. The court will also consider 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 which includes consideration of a person’s understanding and response to questions. Further matters which may be relevant include a person’s prior experience with police investigations and with instructing lawyers, and any difficulties in his comprehension in the past.
I consider the Judge was correct in concluding that the psychologists had failed to address the correct questions. They have both regarded the appellant as unfit to plead because he failed a number of tests which demonstrated that he had significantly reduced cognitive functions.
They did not consider in specific terms whether the appellant understood what it is with which he had been charged and whether he was able to give specific instructions about the allegations, and to enter a plea to the charges. Although Mr Ireland addressed the appellant’s understanding of his right to challenge jurors, his conclusions were based on the appellant’s understanding of tactical decisions to be made at trial, rather than his specific understanding once the legal position had been explained to him of his right to challenge jurors.
Having viewed the appellant’s responses when interviewed by the police, I am satisfied that the appellant could understand the nature of the allegations, was able to understand his rights, and would be able to speak and give instructions to a solicitor and understand and follow the solicitor’s advice.
I agree with the trial Judge that the appellant has failed to prove that he is unfit to plead.
I would dismiss the appeal.
LAYTON J: Having had the opportunity to read the decision of Sulan J, I agree that the appeal should be dismissed for the reasons which he gives.