R v Taylor - [2014] SASCFC 112

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TAYLOR
[2014] SASCFC 112
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Peek and The Honourable Justice Stanley)
30 October 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - OTHER MATTERS
CRIMINAL LAW - PROCEDURE - FITNESS TO PLEAD OR BE TRIED
Appeal by permission from a finding that the appellant is not mentally unfit to stand trial.
The appellant is charged with attempted aggravated robbery and aggravated serious criminal trespass and theft. The offence of attempted aggravated robbery is alleged to have to occurred in 2010 and the other charged offences are alleged to have occurred in 2012.
Upon the application of the appellant, an investigation into his mental fitness to stand trial took place.
The judge found that the appellant was fit to stand trial. He appeals this finding pursuant to s 269Y of the Criminal Law Consolidation Act 1935 (SA).
There are two grounds of appeal. First, that the learned judge’s finding that the appellant is fit to stand trial cannot be supported by the evidence, and second, that the learned trial judge has erred by finding that legal representatives can assist the applicant to the point where an accused person is mentally fit to stand trial.
Held per Stanley J (Kelly and Peek JJ agreeing, dismissing the appeal):
1. The trier of fact, whether a judge or jury, is not bound to accept and act upon expert evidence, however, they are not entitled to disregard it capriciously. In deciding the ultimate fact in issue the judge or jury are bound to consider not only the expert evidence adduced but the evidence upon the whole facts and circumstances relevant to the fact in issue (at [34]).
2. So long as the accused has the mental capacity to understand the basic forensic process of the trial and to give instructions upon advice so as to be able to put a proper defence with the assistance of counsel, then he is not able to rebut the presumption that he is mentally fit to stand trial (at [45]).
3. In this matter the evidence put forward on behalf of the appellant by the two psychologists, while demonstrating that the appellant suffers from a mild intellectual disability, does not demonstrate that the appellant, aided by counsel and his solicitor, is unable to understand the allegations he faces and to respond rationally to them, or is unable to exercise his procedural rights, or is unable to understand the nature of the proceedings or to follow the evidence and the course of the proceedings (at [36] - [46]).
Criminal Law Consolidation Act 1935 (SA) s 269Y, s 269H, s 269I, Part 8A; Magistrates Court Act 1991 (SA) s 42, referred to.
Kesavarajah v The Queen (1994) 181 CLR 230; R v Pritchard (1836) 7 Car & P 303; Eastman v The Queen (2000) 203 CLR 1; R v Presser [1958] VR 45; Ngatayi v The Queen (1980) 147 CLR 1; R v Stevens (2010) 107 SASR 456; Simpson Ltd v Arcipreste (1989) 53 SASR 9; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616; Wigg v Architects Board of South Australia (1984) 36 SASR 111; Phillips v Commonwealth (1964) 110 CLR 347; Taylor v Hayes (1990) 53 SASR 282; R v Lindsay (2013) 117 SASR 307; R v Taylor [2014] SADC 107 ; R v Hall (1988) 36 A Crim R 368, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Unfit to stand trial"

R v TAYLOR
[2014] SASCFC 112
Court of Criminal Appeal: Kelly, Peek and Stanley JJ

KELLY J: I agree that this appeal should be dismissed. I agree with the reasons of Stanley J.
PEEK J: I would dismiss the appeal. I agree with the reasons of Stanley J.
STANLEY J:
Introduction
This is an appeal by permission from a finding that the appellant is not mentally unfit to stand trial.
The appeal is pursuant to s 269Y of the Criminal Law Consolidation Act 1935 (SA) (the CLCA).
The appellant is charged with attempted aggravated robbery and aggravated serious criminal trespass and theft. The offence of attempted aggravated robbery is alleged to have to occurred in 2010 and the other charged offences are alleged to have occurred in 2012.
There are two grounds of appeal. First, that the learned judge’s finding that the appellant is fit to stand trial cannot be supported by the evidence, and second, that the learned trial judge has erred by finding that legal representatives can assist the applicant to the point where an accused person is mentally fit to stand trial.
Mental unfitness to stand trial
Division 3 of Part 8A of the CLCA concerns mental unfitness to stand trial.
Section 269I provides that an accused is to be presumed fit to stand trial unless he or she rebuts such a presumption on the balance of probabilities. It is not sufficient to rebut the presumption that a doubt is raised as to the accused’s fitness.[1] Section 269H sets out the criteria for determining mental unfitness to stand trial. It provides:
[1] R v Leach [2002] SASC 321 at [10].
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.
Section 269H enshrines in statute the common law test.[2] The test to be applied is well settled.
[2] R v Sexton [2000] SASC 276 at [61], (2000) 77 SASR 405 at 418.
The test at common law, as pointed out by the majority of the High Court in Kesavarajah v The Queen,[3] was based on the explanation given by Alderson B to the jury in R v Pritchard[4] and required the ability: (1) to understand the nature of the charges; (2) to plead to the charge and to exercise the right of challenge; (3) to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged; (4) to follow the course of the proceedings; (5) to understand the substantial effect of any evidence that may be given in support of the prosecution; and (6) to make a defence or answer the charge.[5]
[3] [1994] HCA 41, (1994) 181 CLR 230 at 245 per Mason CJ, Toohey and Gaudron JJ.
[4] (1836) 7 Car & P 303.
[5] Eastman v The Queen [2000] HCA 29 at [298], (2000) 203 CLR 1 at 99; see also R v Presser [1958] VR 45.
The test should be applied in a “reasonable and commonsense fashion”.[6] The test for fitness “properly understood … may not be very difficult to meet”.[7]
[6] R v Presser [1958] VR 45 at 48.
[7] Eastman v The Queen [2000] HCA 29 at [298], (2000) 203 CLR 1 at 99.
In order to be fit to stand trial, an accused must be able to follow the course of the proceedings so as to understand what is going on in a general sense, but it is not necessary that he or she is capable of following the complexities of legal argument or, for that matter, the intricacies of some forensic or expert evidence. As the majority of the High Court said in Ngatayi v The Queen[8] the test looks to the capacity of the accused to understand the proceedings, but complete understanding may require intelligence of quite high order, particularly in cases where complex legal questions arise. It is notorious that many crimes are committed by persons of low intelligence, but it has never been thought that a person can escape trial simply by showing that he is of low intelligence.
[8] [1980] HCA 18, (1980) 147 CLR 1 at 8.
Further, in assessing the fitness of a person to stand trial it is proper for the Court to weight the complexity of the charge faced by the accused and whether the accused is represented by counsel.
In R v Stevens,[9] Sulan J, with whom Nyland and Layton JJ agreed, said:[10]
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.
[9] [2010] SASCFC 1, (2010) 107 SASR 456.
[10] [2010] SASCFC 1 at [57], (2010) 107 SASR 456 at 468.
In Ngatayi v The Queen,[11] Gibbs, Mason and Wilson JJ said:
The section does not mean that an accused can only be tried if he is capable, unaided, of understanding the proceedings so as to be able to make a proper defence … In deciding whether an accused is capable of understanding the proceedings so as to be able to make a proper defence it is relevant that he is defended by counsel. If the accused is able to understand the evidence, and to instruct his counsel as to the facts of the case, no unfairness or injustice will generally be occasioned by the fact that the accused does not know, and cannot understand, the law. With the assistance of counsel he will usually be able to make a proper defence.
[11] [1980] HCA 18, (1980) 147 CLR 1 at 9.
The nature of an appeal pursuant to s 269Y
The right of appeal is a creature of statute. The character of any appeal must be determined by construing the provisions by which the right to appeal is conferred.[12] Appeals can be divided into three main categories: an appeal strictly so called; an appeal by way of rehearing; and an appeal de novo. In an appeal in the strict sense the question for consideration is whether the order appealed from was right on the material which the lower court had before it.[13] Fresh evidence cannot be called. The Court can only give such judgment as should have been given at the original hearing. An appeal by way of rehearing is a rehearing on the documents but with special power to receive further evidence on the appeal. The issue before the appeal court is whether the order of the court below should be affirmed or overturned in the light of the material before the appeal court at the time of the appeal.[14] An appeal de novo involves a fresh hearing with the parties being entitled to begin again and adduce new evidence.[15]
[12] Simpson Ltd v Arcipreste (1989) 53 SASR 9 at 16.
[13] Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd [1976] HCA 62, (1976) 135 CLR 616 at 619.
[14] Wigg v Architects Board of South Australia (1984) 36 SASR 111 at 113.
[15] Phillips v Commonwealth [1964] HCA 22, (1964) 110 CLR 347.
Despite the fact that these three categories of appeal are well established, in Wigg v Architects Board of South Australia[16] Cox J said:[17]
It is not to be supposed, of course, that a statutory appeal procedure will always fit easily into one or other of the three categories discussed above. It is open to a legislature to create any kind of appeal it pleases, including a hybrid that exhibits features of more than one of the classic categories.
[16] (1984) 36 SASR 111.
[17] (1984) 36 SASR 111 at 114.
In R v Stevens,[18] Sulan J considered the nature of the appeal pursuant to s 269Y. He analysed the subsection as conferring a right of appeal that was wider in its ambit than an appeal stricto sensu. He equated the right of appeal conferred by s 269Y with the right of appeal to this Court created pursuant to s 42(5) of the Magistrates Court Act 1991 (SA). That right of appeal has been characterised as an appeal by way of rehearing.[19] That requires a court on appeal to 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 in doing so the court is not to disregard the judgment appealed from, but must carefully weigh and consider it. However, if on full consideration, the court concludes the judgment was wrong, then the court must substitute for the judgment under appeal any order it considers that the court should make.
[18] [2010] SASCFC 1, (2010) 107 SASR 456.
[19] Taylor v Hayes (1990) 53 SASR 282.
Obviously, in the context of s 269Y the breadth of the court’s powers on appeal is confined to the broad powers expressly conferred by s 269Y(5). Section 269Y(5) provides:
(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.
The decision
The judge directed herself that s 269H is concerned with the accused’s capacity to understand the charges against him and participate in the proceedings that stem from those charges. She referred to the test of unfitness as stated by Smith J in R v Presser and as explained in more recent cases of R v Lindsay[20] and R v Stevens.
[20] [2013] SASC 104, (2013) 117 SASR 307.
The judge undertook a detailed analysis of the evidence of the psychologists, Mr Broomhall and Dr Field. She also referred to the tests that had been administered by Dr Cayley.
Mr Broomhall’s evidence was that while the appellant might be able to understand the charges if explained to him in simple terms, if the volume of evidentiary material was complex it may cause him to be overwhelmed and not understand the effect of the evidence adduced at trial. His ability to recall and communicate information would have an impact on his ability to respond to the charge, adversely affecting his ability to exercise forensic choices or procedural rights. While he might be able to understand advice proffered, he would not be able to respond to that advice in a rational way other than to blindly accept it. The risk is he would simply accept advice when confronted with a choice. Further, he would be disadvantaged in giving evidence in that his memory is so poor he would not be able to recall previous evidence given and it is likely that he would answer questions in a way he believed would stop the questioning rather than address it. He also suffers from high levels of anxiety which will adversely affect his memory and cognitive function in the course of a trial.
Dr Field’s evidence was to similar effect. He considered the appellant may be able to understand the charges he faces but not respond to them in a rational way. He considered he had a very limited ability to understand his right to challenge jurors or to understand the pros and cons of trial by jury or judge alone and he would be unable to retain and process information during the course of a trial in a way that would allow him to understand and respond meaningfully to it. The appellant is suggestible such that an affirmative answer to a question could not be taken at face value. As a trial went on the appellant’s difficulties would become worse.
Evidence was also called from the appellant’s sister, Cassandra Taylor, who gave evidence of his difficulty with general living and such matters as understanding how his pay corresponded to the number of hours he worked. She also gave evidence of her involvement in his legal representation and his misunderstanding the role of the prosecution and his inability to understand bail issues despite having been bailed on numerous occasions.
The judge found that the appellant had a low to extremely low level of intelligence. She considered that notwithstanding the expert evidence she was satisfied that the appellant was able to explain the charges and the allegations that he faced and was able to respond rationally to them. The judge had regard to a record of police interview with the appellant from October 2010. She found:[21]
The interview of Mr Taylor on the 18^th October 2010 whilst available on audiovisual disc has not been able to be played by me. I therefore had regard to the written transcript and the limitations that that must bring with it. On the face of it however, Mr Taylor appears to understand what he is being asked. He responds appropriately. He makes decisions based upon the information that he has been given. He voluntarily determines that he does not wish to go in a ‘line up’. He appears to understand without being told that a photographic identification procedure will be the alternative to this. He provides, through the course of that interview, an alibi for the offending. I reject the evidence of Dr Field that he has been inconsistent in respect of his answers in the interview as a result of his intellectual functioning. If there are any inconsistencies they are not immediately apparent and they appear to have been as a result of choices that he made and exercised.
[21] R v Taylor [2014] SADC 107 at [68].
The judge noted that although the expert witnesses had some doubt in respect of the appellant’s exercise of his procedural rights they had failed to take into account the fact that he is represented by counsel and the vast majority of persons charged with serious criminal offences will rely upon advice proffered by counsel.
The judge considered that there was a difficult question concerning the appellant’s ability to exercise his rights but she was not satisfied that any person had attempted to explain those rights to the appellant or had attempted to explain the nature of the proceedings or of the evidence to be adduced at his trial. When he had been asked about proceedings by the experts he was able to explain them in simple terms. The judge considered that the appellant did not have to understand the minutiae of the evidence to be given but rather its general thrust. She considered the charges he faced were not particularly complex and he would be assisted by counsel.
In these circumstances the judge was not satisfied on the balance of probabilities that the appellant was unfit to stand trial for the offences with which he was charged. She accepted however, that by reason of his level of anxiety there may be a necessity for additional time to be devoted to explaining the evidence to him so that he comprehends what is happening in court.
Submissions on appeal
Mr Stewart, counsel for the appellant, submits that the two experts who gave evidence before the judge found the appellant unfit to stand trial. No evidence was called from any other expert to contradict the evidence of Dr Field and Mr Broomhall. The appellant suffers from a mild intellectual disability. The experts say that he does not understand complex issues; he has difficulty making decisions; he has a memory deficit by reason of which he will not be able to follow complex information, assimilate and then make decisions. He meets the definition of a person mentally unfit to stand trial in each of the three categories specified in s 269H. The expert evidence establishes that the appellant is unable to understand or respond rationally to the charges or allegations on which the charge is based. He is unable to exercise procedural rights and he is unable to understand the nature of the proceedings or to follow the evidence or the course of proceedings. The appellant is not able to understand the whole Crown case and its complexities on either set of charges. He lacks the intellectual function to challenge jurors and he is not able to plead to the charges because he is not able to understand the whole of the case against him and what his defences might be. Experts have grave concern about his ability to follow the course of proceedings and the substantial effect of any evidence that may be adduced against him. This means he is not able to instruct properly because he does not have the intellectual capacity to do so. When presented with choices he would not be able to make rational decisions. By reason of his memory deficit and suggestibility he would be at a particular disadvantage under cross-examination, such that there is no reasonable prospect of him being able to give evidence. Accordingly, he cannot by definition obtain a fair trial. None of this is answered by him being able to rely upon the assistance of counsel. In any event, counsel would be placed in the invidious position of not discharging his professional obligations in accordance with the Bar Rules as he could have no confidence that any instructions given by the appellant upon which counsel would be required to act are rational. He submits these difficulties are not met by referring to his record of interview. His capacity to respond to interview questions does not equate to him understanding the choices available to him about prospective defences or evidence a capacity to give proper instructions. These matters are not proved by his capacity to indicate he did not wish to take part in a line up.

Mr Nitschke, counsel for the prosecution, submits the test for mental unfitness is not decided in the abstract. It is decided in relation to the particular accused and the particular charges the accused faces. It is relevant that the accused is represented. The judge made no error in having regard to these factors. While the judge was obliged to consider the expert evidence she heard, she was not bound to accept it. In any event, Mr Broomhall gave evidence that if the charge was broken down sufficiently for the appellant he could understand it and retain it. Dr Field seems to concede the same point. In this context it is important to recognise that the charges are not complex. The judge was correct in concluding the appellant had not proved his mental unfitness to stand trial particularly having regard to the evidence of the record of interview which demonstrated his capacity to cope with a challenging and difficult environment, and to understand his rights and exercise them. This was particularly so in relation to whether or not to participate in an identification line up. There was no error in the judge’s approach to the matter and her finding was justified on the evidence.
Consideration
It is my view that the evidence does not prove on the balance of probabilities the appellant’s mental unfitness to stand trial.
The evidence does not prove that the appellant falls within any of the three limbs of s 269H.
I commence with the question of whether the appellant is unable to understand or respond rationally to the allegations upon which the charges he faces are based. The alleged facts of the charges faced by the appellant are not complex or difficult to understand. The evidence in relation to the attempted aggravated robbery charge is evidence of identification from an array of photographs and of a DNA match from a sample of DNA found on a car jack which is linked to the crime scene. The evidence in relation to the charges of serious criminal trespass and theft is CCTV footage allegedly depicting the appellant entering residential premises at Craigmore.
The appellant submits that the evidence of Mr Broomhall and Dr Field that the appellant was mentally unfit to stand trial was unchallenged. The trier of fact, whether a judge or jury, is not bound to accept and act upon expert evidence, however, they are not entitled to disregard it capriciously. In deciding the ultimate fact in issue the judge or jury are bound to consider not only the expert evidence adduced but the evidence upon the whole facts and circumstances relevant to the fact in issue.[22] If the expert evidence is all one way and in favour of the accused and there is nothing in the facts and surrounding circumstances which could lead to a contrary conclusion then a verdict against the expert evidence cannot be sustained.[23]
[22] R v Hall (1988) 36 A Crim R 368 at 370-371.
[23] R v Hall (1988) 36 A Crim R 368 at 371.
Accordingly, in determining whether the presumption of mental fitness to stand trial has been rebutted it is necessary to consider not just the evidence of Mr Broomhall and Dr Field but all of the evidence relevant to this question.
While the appellant suffers from a mild intellectual disability it is apparent that he is capable of explaining the charges brought and the allegations of fact that underpin them. Indeed, Mr Broomhall conceded that if the charges were broken down sufficiently for the appellant it is likely he would be able to understand. Dr Field conceded that he had not specifically explored with the appellant his ability to understand the charges or the allegations that underpin them. Nonetheless, Mr Broomhall gave evidence that there was a risk that under questioning, the appellant rather than responding truthfully, would say what he thought his questioner wanted to hear and he would respond in a manner that he thought would resolve the situation. Dr Field gave evidence that he considered the appellant was someone who would tend to agree with anything said to him. Yet when all the evidence is considered the validity of those opinions is not demonstrated.
The police record of interview of 18 October 2010 is revealing. Clearly the judge gave it considerable weight. I do not consider she was in error to do so. In that interview the appellant demonstrates an understanding of his procedural rights and a capacity to exercise them. He understands his right to make a telephone call, to have someone present during an interview, to remain silent and to decline to participate in an identification parade. Importantly, he not only appreciates, without being told, that he can decline to participate in a line up for the purposes of identification in favour of a photographic procedure, but he does so.
In addition, in the course of this interview there is evidence refuting the psychologists’ opinion that the appellant is compliant and suggestible. It is put to the appellant that the police have interviewed a co-offender, TP, who has implicated the appellant in the alleged offending. The appellant denies he was with TP on this occasion. Then the following exchange occurred:
QSo if we were go to check the CCTV footage of the areas where he’s alleged that you guys have been, there would not be any footage of you, Dylan Lamb or him anywhere near those areas?
ANah.
QNot at the Hungry Jacks, not at the On the Run?
ACheck em out man. Yeah.
QNot at Dan Murphy’s?
ANah. Where did this other robbery happen, where’d you say?
QWell there’s two obviously, there’s one at Cavan.
AYeah and they’ve got all the cameras there shouldn’t they?
QNear the On the Run, this one happened not at the On the Run, near the On the Run, right.
AOh they would have all cameras and that?
QWell they would have but unless it’s on their premises, but as I said, don’t worry let us do the ground work and do the follow up enquiries and so on. Obviously these are allegations and we need to prove. He who alleges must prove. So we’ll do the proving, don’t you worry about that.
...
QThere’s also the CCTV at the, there’s three banks lined across that road at Mawson Lakes where the incidents occurred.
AThat’s what I’m hoping, you get all that up and then you’ll see.
In my view, the record of interview is evidence from which the trier of fact is entitled to reach a conclusion different from the opinions formed by the psychologists. The record of interview demonstrates that the appellant has an understanding of the allegations he faces, a capacity to address those allegations rationally, an understanding of his rights and the capacity to exercise them.
In addition, Dr Field said that he had formed his opinion that the appellant was unable to understand or respond rationally to the charges he faces on the basis of his inconsistency in responding to questions in the record of interview. I consider this involved a misunderstanding of the effect of the appellant’s answers. The apprehended inconsistency arose from Dr Field construing affirmative responses to propositions being put to the appellant by police as evidencing admissions when in fact they were no more than the appellant acknowledging that these allegations were being put to him.
I turn to the question whether the appellant is unable to give rational instructions or exercise procedural rights. I consider on the evidence as a whole, particularly the record of interview, that he can. Further, Mr Broomhall was uncertain whether the appellant would understand the rationale for empanelling jurors or exercising his right to challenge but he accepted that if the process was explained in simple terms, with the assistance of his solicitor, the appellant would grasp the process. Dr Field considered the appellant capable of challenging a prospective juror.
I next turn to the question whether the appellant is unable to understand the nature of the proceedings. It is true that statements made by him to the psychologists demonstrate that he has only a rudimentary understanding of the trial process. On the other hand, there is no evidence that this had previously been explained to him. I consider that his capacity to understand his procedural rights and exercise them evidences a similar capacity to understand the trial process if properly explained to him. This is not inconsistent with the evidence of Mr Broomhall that he can understand the charges he faces if they are explained to him in clear and simple terms. Likewise, I consider that if the trial process was explained to him in clear and simple terms he would also understand it.
It must be remembered that he will have the assistance of solicitor and counsel.
This brings me conveniently to the second ground of the appeal.
In Ngatayi the High Court explains that in deciding whether an accused lacks the mental fitness to stand trial it is relevant that the accused is defended by counsel. So long as the accused has the mental capacity to understand the basic forensic process of the trial and to give instructions upon advice so as to be able to put a proper defence with the assistance of counsel, then he is not able to rebut the presumption that he is mentally fit to stand trial.
In my view, applying the test in s 269H in a reasonable commonsense fashion, I am not persuaded on the balance of probabilities that the appellant, aided by counsel and his solicitor, is unable to understand the allegations he faces and to respond rationally to them, or is unable to exercise his procedural rights, or is unable to understand the nature of the proceedings or to follow the evidence and the course of the proceedings. On the contrary, I am satisfied that he has the capacity when these matters are explained to him to understand what is the case alleged against him in respect of the charges he faces and to instruct his legal advisers, so as that his trial will be fair. There is nothing capricious in this conclusion. The judge’s finding is not in error.
Conclusion
I would dismiss the appeal.