R v Stevens - [2009] SADC 143

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v STEVENS
[2009] SADC 143
Reasons for Decision of Her Honour Judge Davey
16 December 2009
CRIMINAL LAW - PROCEDURE - FITNESS TO PLEAD OR BE TRIED
The Applicant is charged with ten counts of sexual assault - the Applicant has an intellectual disability - investigation into the Applicant's mental fitness to stand trial pursuant to the provisions of Part 8A of the Criminal Law Consolidation Act 1935.
Criminal Law Consolidation Act 1935 Part 8A, referred to.
R v Leach [2002] SASC 321; R v Sexton (2000) 77 SASR 405; Eastman v The Queen (2000) 74 ALJR 915; R v Kola (2004) 233 LSJS 443; R v Presser [1958] VR 45; R v Miller (No 2) (2000) 209 LSJS 20; Ngatayi v The Queen (1980) 147 CLR 1, considered.

R v STEVENS
[2009] SADC 143

This is a hearing in respect of an application pursuant to S269J(2)(a) of the Criminal Law Consolidation Act, 1935 (CLCA) that there be an investigation into the mental fitness of Michael John Stevens.
Mr Stevens is charged with ten counts of various sexual assaults. The charges are set out in the Information laid in this court dated 23 March 2009. There are three counts of indecent assault (counts 1, 4 and 6); six counts of aggravated indecent assault (counts 2, 3, 5, 7, 9 and 10) and one count of gross indecency (count 8). The alleged offending relates to various periods between 1 January 2005 and 24 January 2008. The offending relates to three different complainants, each of them are alleged on the Information to have been under 12, 14 or 16 years at the relevant time. In fact, it is alleged that each complainant was aged between 7 and 10 years at the time of the relevant offence. An added factual complexity in the matter is that the offending straddles the legislative amendments to Section 56 CLCA which amendments came into operation on 15 May 2006.
I note that there are Declarations filed in respect of the allegations made by the various complainants, however I am informed by the prosecution that there is substantial variation between what is deposed to therein and the evidence that will be led at the trial of Mr Stevens. The prosecution and defence agree that the factual background to the offences charged is that outlined by Mr Handshin, for the DPP, during submissions on 3 December 2009 commencing at page 6. I summarise the factual allegations as follows:
·In respect of the complainant JT that she was touched in the area of her vagina.
·As to the complainant JM it is alleged that Mr Stevens followed her into the bathroom (when he was looking after the children) and he touched her in the area of the vagina. There is also a further allegation that Mr Stevens put his penis between her legs and rubbed it.
·In respect of the complainant KM it is alleged that Mr Stevens masturbated in his presence and on two occasions placed his penis between the legs of KM and rubbed his penis in that area.
In each case, no question of consent arises due to the age of the complainants.
The prosecution has chosen to charge a number of the offences in an aggravated form and hence issues as to the time of the offences charged will be relevant as to whether or not the offences are aggravated or not. This is an added complexity with respect to the matter.
This matter was listed for hearing of an investigation into the defendant’s mental fitness to stand trial pursuant to the provisions of Part 8A of the Criminal Law Consolidation Act, 1935 (CLCA). At the outset of the proceedings before me, an election was made pursuant to Section 269B CLCA that the investigation be conducted by a Judge sitting alone; an oral election was made before me on 17 September 2009. I made an order pursuant to Section 269J CLCA that there be an investigation into the defendant’s mental fitness to stand trial. I then made a decision pursuant to Section 269L CLCA that the question of the defendant’s mental fitness to stand trial was to be separately tried before any other issue to be tried. The trial of this matter then proceeded in accordance with Section 269M CLCA.
Prior to the commencement of the hearing before me on 17 September 2009, solicitors for the applicant had obtained reports from psychologists, Dr Jack White dated 18 March 2009 and Mr Greg Ireland dated 16 November 2008. At some stage the prosecution indicated an intention to obtain a neuropsychological report and the proceedings had been adjourned for that purpose. However that matter was not pursued and the matter proceeded before me solely on the basis of the expert evidence of Dr White and Mr Ireland, cross examination of the psychologists, and other matters which were tendered or referred to by consent.
Section 269I CLCA provides that
“a person’s mental fitness to stand trial is to be presumed unless it is established, on an investigation under this Division, that the person is mentally unfit to stand trial.”
There must be proof on the balance of probabilities that the defendant is mentally unfit: R v Leach[1]. The onus is on the applicant to establish unfitness.
[1] (2002) SASC 321
Section 269H CLCA provides as follows:
“A person is mentally unfit to stand trial on the 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 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.
Part 8A CLCA does not define the phrase “mental processes” or the words “disordered” or “impaired”. Section 269H CLCA is concerned with mental unfitness as opposed to mental illness.
In R v Sexton[2] Gray J observed :
“Mental unfitness is identified as a disorder or impairment to a person’s mental process so that the person is, in general terms, unable to understand the trial process and their part in that process.
A lack of understanding can result from a disordered or impaired mental process. It can arise from many causes other than mental illness. A mental process can be disordered or impaired without there being an underlying illness. This is the rationale of the common law rule, that lack of comprehension, regardless of cause, is the relevant criteria to determine unfitness for trial. Section 269H encapsulates the same criterion as the common law in regard to the determination of unfitness for trial.”
[2] (2000) 77 SASR 405 (at 414-416)
It has been said that fitness to plead is an extension of the common law guarantee of a fair trial (see Eastman v The Queen[3]). As has been observed elsewhere (see R v Kola[4]) nothing in Section 269H CLCA is a departure from the common law requirement that a person must be fit to stand trial.
[3] (2000) 74 ALJR 915 at paras 64-65
[4] (2004) 233 LSJS 443
Section 269H CLCA refers to “a charge of an offence” and the specific charge or charges and proceedings. I accept the prosecution submission that the application of Section 269H must be considered in light of the particular charge or charges and type of trial that the applicant faces. I am of the view that it is in that context that the criteria referred to in R v Presser[5] should be considered; namely that an accused person needs:
“… to understand what it is that he is charged with. He needs to be able to plead to the charge and to understand his right challenge. He needs to understand generally the nature of the proceeding, namely, that it is an enquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand … 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 his counsel, if any.”
[5] (1958) VR 45 at page 48
As was observed by Martin J in R v Miller (No 2)[6], Section 269H CLCA does not give guidance as to the extent of the understanding or capacities that an accused is required to possess in order to be fit to stand trial. However it has been observed that a similar provision does not require a complete understanding of the proceedings and that it is relevant that the accused will be defended by counsel. See Ngatayi v The Queen[7]. In that case the High Court noted that many crimes are committed by persons of low intelligence and the court respectfully agreed with the comments of Smith J in R v Presser, that the test needs to be applied in “a reasonable and common sense fashion”. Similarly, it is not necessary for an accused person to be able to understand the law which governs his case nor that he must be capable, unaided, of understanding the proceedings.
[6] (2000) 209 LSJS 20 at pages 227-230
[7] (1980) 147 CLR 1; at 8
In this case there is substantial agreement between Dr White and Mr Ireland that the applicant has a mental impairment or retardation which is manifested in a low IQ. The cause or aetiology of this impairment is not known and I accept that it is not necessary for there to be an exploration of whether this was a congenital deficiency, caused by some later injury or otherwise.
The prosecution’s earlier indication of a desire for a neuropsychological report may have revealed the cause of this deficiency but in the end, I am of the view that it would be of little assistance to me as there is no real dispute that Mr Stevens has a level of mental impairment. Mr Ireland administered psychometric testing of the applicant and found Mr Stevens to have an IQ in the range of 55-69 which is described as a mild level of intellectual disability. He is described as having a reading level equivalent to the average Year 2 student. At the time of the assessment, Mr Stevens was 36 years old and it was found that he suffered an impairment of his ability to problem solve and understand his environment and community.
Dr White also conducted psychometric testing of the applicant and his results were in broad agreement with those of Mr Ireland. Dr White observed that the results from the testing conducted were consistent with previous psychological testing of Mr Stevens earlier in his life when assessed by the Intellectual Disability Support Council for the purposes of a Disability Support Pension and other IDSC services.
Of course, the psychometric testing is one aspect, albeit important, of an assessment relevant to a determination pursuant to Section 269H CLCA. In that regard, both psychologists engaged Mr Stevens in other assessment processes in order to form their respective opinions. One method used by Dr White has been expressly eschewed by counsel for the applicant because of the use of criteria and expressions relevant to the environment of the United States of America rather than those applicable in Australia. However both psychologists engaged in discussions and questioning of Mr Stevens in order to form their opinions and the basis of these assessments are referred to in their reports and in their oral evidence before me. Both psychologists expressed the view that the applicant was unfit to be tried.
Apart from the questioning and testing done by the psychologists, a number of other important factors emerged from the reports and other materials placed before me. Mr Stevens has been living independently for many years. A glimpse of the circumstances of his dwelling place is evident from the video tape made at the time of his arrest (Exhibit P4 are the two VHS tapes of interviews with the applicant.) The video tape marked “Michael Stevens Rights/Con” gives me some information as to the physical surroundings of the Applicant’s home. He has, it appears, lived in that environment for many years and apparently lives entirely independently. It seems he has a mobile phone, that he told Mr Ireland that he has an “X Box” (ie electronic game system) and a computer is visible in the video tape of the arrest video. No evidence was led as to whether or not this was used but the computer appeared be set up in the usual fashion.
Mr Stevens has attended special schools with respect to his education and the report of Mr Ireland says that he left his last special school at Kensington at the age of 20. He has apparently been on a disability pension since 16 years of age.
Regrettably, not only does the applicant have a deficit in intellectual functioning, it appears that he has suffered from a deprived upbringing. Nonetheless, he was apparently able to give a coherent early history in his interview with Mr Ireland referring to being one of four brothers and that he was placed in a boys’ home because his mother was an alcoholic. Apparently the Public Trustee manages his money for him and he has support from Disability SA including the support of a case worker.
I note that whilst a case worker attended court with the applicant on most occasions when the matter was heard by me and I was told by counsel for the applicant that evidence from that source may be called, no evidence was led from any support person who has worked with the applicant.
In his interview with Mr Ireland, Mr Stevens reported that he had been employed to do demolition work and had had a job lasting six months in one instance and 12 months in another. He also described working for brief periods at a wrecking yard, at a joiners and six months as a furniture removalist. He reported that he had had a 12 month long relationship at some point in time in the past but that he now preferred to go “bike riding”. He also told Mr Ireland that he can “fix things” such as mobile telephones and he does so for friends.
Mr Stevens reported to Mr Ireland that he has had a lot of trouble with the law in the past and the evidence of Dr White revealed that Mr Stevens had had a number of prior Court appearances. During submissions, I asked (on more than one occasion) whether the applicant wished to call evidence of any difficulty relating to the taking of instructions, advising or acting for Mr Stevens in respect of any previous proceedings or these proceedings. Such evidence could have come from legal practitioner(s) who are or have acted for Mr Stevens. On 16 October 2009, I adjourned the proceedings to enable the applicant to call further evidence as to these matters (as I had indicated such evidence would be of assistance to me) but I was told on 21 October 2009 that the applicant would not be calling any further evidence and therefore no evidence in this regard was led in support of the application.
When the two psychologists conducted an assessment of Mr Stevens, they had regard to the psychometric and other psychological testing that they thought was appropriate and certain forms of questioning that they considered appropriate, but they had not been provided with information as to the charges or details of the allegations that Mr Stevens was facing. Obviously, therefore, they were not able to consider the criteria set out in Section 269H(a) CLCA. Neither of the psychologists had been provided with the video tapes of the Police conversations and interview with the applicant until after the assessments were conducted and that occurred after I raised the topic with counsel during the hearing. Eventually, both of the psychologists did view the video tapes and Dr White indicated that his opinion had not changed. Mr Ireland informed me that his opinion had not altered and he also augmented his oral evidence with an email setting out his opinions and responses to questions. These documents were tendered by consent.
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.
Mr Stevens will be assisted by legal representation at his trial. As Mr Ireland has observed, he is teachable. Mr Stevens can have the necessary decisions and processes explained to him whereby, he will have the necessary level of understanding. This process may involve a great deal extra preparation time and in all likelihood the assistance of an expert or worker who is experienced with respect to this disability. This sort of assistance would be akin to that of an interpreter; to ensure that the lawyer working with and advising Mr Stevens understands the levels of communication and manner of explanation that are appropriate and necessary. As I have already observed, there is no evidence before me that such efforts have been made and failed nor that they have been attempted at all.
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.
Having regard to the factual allegations underlying the charges, the material tendered before me and adduced during examination and cross examination, the submissions by both counsel and those matters which have been provided to me by consent, I am of the view that the applicant has not discharged the onus such that the presumption of fitness to stand trial is displaced. Whilst I accept the expert opinions as to the psychometric testing of the applicant I am not satisfied that the witnesses have properly understood or applied the criteria in Section 269H CLCA. The applicant has not satisfied me on the balance of probabilities of unfitness to stand trial. I understand that the applicant may require additional or special assistance to ensure his fair trial and that there is the possibility that the manner of trial may require some variation in order to ensure that counsel have extra time to give advice and take instructions. I order that the applicant stand trial and I will hear the parties as to the next stage of the proceedings.