R v Taylor

Case [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

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R v Taylor [2014] SASCFC 112
Case
[2014] SASCFC 112
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CaseChat Overview and Summary

This matter concerned an appeal by the appellant, R v Taylor, against a decision of the trial judge who found him fit to stand trial. The appeal was heard by Kelly, Peek, and Stanley JJ. The central dispute revolved around whether the appellant had proven, on the balance of probabilities, that he was mentally unfit to stand trial.

The legal issues before the court were whether the trial judge erred in her assessment of the appellant's fitness to stand trial, particularly in relation to the test for mental unfitness. This involved considering the relevance of the appellant's representation, the complexity of the charges, and the weight to be given to expert evidence compared to other factual circumstances. The court was required to determine if the appellant met the criteria for unfitness as defined by section 269H of the relevant legislation, which concerns an accused's capacity to understand the charges and participate in proceedings.

The appellate court reasoned that the test for mental unfitness is specific to the individual accused and the charges they face, and that the trial judge was entitled to consider the appellant's representation and the relative simplicity of the charges. While obliged to consider the expert evidence from psychologists Mr Broomhall and Dr Field, the judge was not bound to accept it, especially where there was evidence, such as the record of interview, demonstrating the appellant's capacity to understand his rights and cope in a challenging environment. The court noted that the expert evidence, while suggesting potential difficulties if the evidentiary material became complex, also contained concessions that the appellant could understand the charges if explained simply. The court found that the trial judge's conclusion that the appellant had not proven his unfitness was justified by the totality of the evidence, including the record of interview and the nature of the charges.

The court ultimately confirmed the trial judge's decision, finding that the evidence did not prove on the balance of probabilities that the appellant was mentally unfit to stand trial. The appellate court exercised its powers under s 269Y(5) to confirm the decision of the court of trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.