R v Taylor
[2014] SADC 107
•13 June 2014
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v TAYLOR
[2014] SADC 107
Reasons for Decision of Her Honour Judge Davison
13 June 2014
CRIMINAL LAW - PROCEDURE - FITNESS TO PLEAD OR BE TRIED
The Applicant is charged with attempted aggravated robbery, aggravated serious criminal trespass and theft. An investigation into the Applicant's mental fitness to stand trial pursuant to the provisions of Part 8A of the Criminal Law Consolidation Act 1935 was considered appropriate.
Held: I am not satisfied on the balance of probabilities that Mr Taylor is unfit to stand trial for the offences that I have under consideration.
Criminal Law Consolidation Act 1935 (SA) Part 8A, referred to.
R v Lindsay [2013] SASC 14; R v Stevens (2010) 107 SASR 456; R v Presser [1958] VR 45; R v Pritchard (1836) 173 ER 135, considered.
R v TAYLOR
[2014] SADC 107
This is a hearing in respect of an application pursuant to section 269J(2)(a) of the Criminal Law Consolidation Act 1935 (SA), hereinafter called the Act, concerning the fitness of Daniel Aaron Taylor to stand trial.
Mr Taylor is charged with Attempted Aggravated Robbery (2010 offence) and Aggravated Serious Criminal Trespass, and Theft (2012 offences).
2010 offence
I turn first to the 2010 offence of Attempted Aggravated Robbery. The prosecution case is that on 17 October 2010 whilst in the company of another (Trent Pursche)[1] and armed with a jack handle, Mr Taylor attempted to rob money and a handbag from the complainant, Dawn Anderson. At approximately 11.30pm, Ms Anderson drove to the Commonwealth Bank teller machine on Main Street, Mawson Lakes where she withdrew $500. Ms Anderson put the money in her purse and returned to her car. The prosecution alleges that Mr Taylor then approached Ms Anderson's car, opened the passenger door, and demanded that Ms Anderson give him her handbag. At the time, it is alleged that Mr Taylor was holding a red pole and struck Ms Anderson on her right shoulder, upper arm and back area. Mr Taylor removed the keys from the ignition, preventing Ms Anderson from leaving. Mr Taylor then struck the vehicle with the pole. Ms Anderson ran from the car holding her handbag to her chest. Mr Taylor followed, and again struck Ms Anderson on her left upper arm, using the pole. Ms Anderson screamed and Mr Taylor eventually fled the scene. A security guard from the Mawson Lakes Hotel gave chase.
[1] The prosecution has since entered a nolle prosequi in relation to Mr Pursche
On the 18 October 2010, Mr Pursche was apprehended by police driving his Commodore in Smithfield. Police conducted a search of the vehicle and located a red metal pole with a black handle that formed part of a car jack. The pole was swabbed. Subsequent forensic testing matched the DNA profile of Mr Taylor with DNA obtained from the pole.
Red paint located on Ms Anderson’s vehicle was compared to the red paint on the jack handle seized by police. Forensic analysis indicates that there was an association between the paint located on the jack handle and the paint located on Ms Anderson’s car. However, forensic reports indicate that the red paint was not unique and other sources could not be excluded.
On the 6 November 2010, Ms Anderson positively identified Mr Taylor in a photographic identification procedure.
When interviewed by police Mr Taylor stated that he had been with his girlfriend, Kiandra, on the night of the alleged offence. Mr Taylor was arrested on 18 October 2011.
2012 offences
The 2012 offences are Aggravated Serious Criminal Trespass, and Theft. It is alleged that at about 12.15am on 14 March 2012 the complainant, Kimberly Cowles, was alone at her boyfriend’s house at Uley Road, Craigmore. Ms Cowles heard a knock at the door. In response, Ms Cowles looked at the CCTV and saw one male at the front of the property. Ms Cowles then heard banging at the door. She struck the door with a baseball bat from inside the property. When Ms Cowles looked again at the CCTV she saw three males run from the property. Shortly after, the group returned and entered the property forcing their way through the roller shutter of the front window. Ms Cowles saw these events occurring on the CCTV. Ms Cowles fled the property through the back door. The three intruders left after a period of time and took the following items with them: a laptop computer, a gold ring, and two gold baby bracelets belonging to Ms Cowles. The CCTV footage was presented to police and Mr Taylor was identified as one of the alleged offenders and arrested the following day. The items taken from the property were found in the possession of Mr Hanley, Mr Taylor’s co-accused.
Personal background
The accused, Mr Taylor, is a 23 year old Aboriginal man. His father is of Greek origin and his mother of Aboriginal decent. His father and mother separated when he was young. Mr Taylor remained with his father and the pair remain extremely close. Following his parents’ separation, Mr Taylor and his father were homeless and lived in a car for a period of at least 2 years. Mr Taylor’s mother had a history of depression and alcohol abuse. Mr Taylor has, however, reported that he would see his mother frequently. In 2008 Mr Taylor’s mother committed suicide. Her death greatly impacted Mr Taylor. Mr Taylor is the youngest of three siblings. His two older sisters have been supportive of Mr Taylor in his daily living and throughout the current proceedings.
Mr Taylor did not commence primary school until the age of 7. His education continued until Year 9 when he left after failing that year. Mr Taylor has a short-lived employment history and has worked with a job network, Boystown, whereby he engaged in brief labour work for a period of approximately 7 months. Mr Taylor currently relies on Newstart Allowance as his only source of income. He receives support from his older sister Cassandra and partner Kiandra in the administration of daily living. According to the reports of Dr Field, Mr Taylor has admitted to a history of ‘poly’ drug abuse that commenced at the age of 15. He lives with Kiandra and their two children.
Application in relation to 2010 offence
On 13 July 2011, Mr Taylor pleaded not guilty to the charge of attempted aggravated robbery and was committed for trial. On 15 August 2011, Mr Taylor appeared before the District Court for arraignment where he entered a plea of guilty to the charge. The matter was then listed for sentencing submissions. Defence then engaged Dr Cayley to conduct a forensic psychological assessment for Mr Taylor. A report from Dr Cayley was furnished on 30 September 2011. It was Dr Cayley’s conclusion that Mr Taylor fell within the range of mental retardation. Subsequent to this report, an addendum report dated 10 October 2011, was provided in which Dr Cayley’s opined that Mr Taylor was unfit to stand trial.
On the 22 March 2012, an application was made to withdraw the plea of guilty to the charge of Attempted Aggravated Robbery. It is submitted that at the time the plea was entered, counsel for Mr Taylor was not informed of ‘the depth of Mr Taylor’s intellectual disability.’ The plea was vacated and an investigation commenced. A subsequent report was provided by Mr Reid[2] which appeared to confirm the findings of Dr Cayley that the defendant was mentally unfit to stand trial.
[2] No reports of Mr Reid were tendered on the application before me.
Application in relation to 2012 offences
On 12 November 2012 Mr Taylor appeared before the District Court for arraignment in relation to the 2012 offences. Ms Waldron, counsel for Mr Taylor, made an application for an adjournment to make further inquiries in relation to Part 8A matters. Mr Taylor was not arraigned and the application was granted by his Honour Judge Rice to enable counsel to obtain forensic psychological reports concerning Mr Taylor’s fitness to stand trial.
At directions hearing on 21 June 2013, Mr Stewart, now counsel for Mr Taylor, notified the court that Mr Taylor had additional files pending in the District Court (the 2010 offences). Mr Stewart advised that in relation to that file counsel had possession of three forensic psychological reports that indicated Mr Taylor was unfit to stand trial. Mr Stewart further advised that he would not be able to continue as counsel in the present matter unless there was a determination made in relation to Mr Taylor’s fitness to stand trial. His Honour Judge Rice remanded the matter for trial on 22 July 2013. His Honour made no determination regarding fitness of Mr Taylor and left the question for the trial judge. Subsequently, defence made an application to vacate the trial date on the grounds that further psychological reports concerning the defendant’s fitness had not been obtained and therefore could not proceed with Part 8A argument.
On 24 July 2013 the matter came before me. I made an order that on 16 September 2013 both files concerning Mr Taylor were to be before me and I would hear the application pursuant to section 269H of the Act.
As to both 2010 and 2012 offences
The matters were listed for an investigation into the mental fitness to stand trial pursuant to part 8A of the Act on 16 September 2013. A nolle prosequi was entered in relation to Mr Pursche.
I made an order pursuant to section 269M that a trial on the fitness of Mr Taylor to stand trial be conducted on the Informations dated 15 August 2011, and 12 November 2012. An application was made by defence counsel that the investigation into Mr Taylor's fitness to stand trial be conducted by Judge alone pursuant to section 269B of the Act outlining elements of the offending. The trial then proceeded pursuant to section 269M of the Act.
I note that there has been a time delay in the current proceedings due to unforeseen circumstances surrounding expert witnesses. It is not necessary to go into detail of these circumstances, but make note that proceedings were adjourned for a period of six months to allow for further psychological examination of Mr Taylor. Proceedings resumed on 7 April 2014.
Fitness to stand trial
Pursuant to section 269I, the defendant is presumed to be fit to stand trial unless determined otherwise through investigation under Part 8A of the Act.[3] It must be established on the balance of probabilities[4] that the defendant is mentally unfit to stand trial. The onus remains with the applicant to displace the presumption of the defendant's fitness to stand trial.
[3] Section 269I Criminal Law Consolidation Act 1935 (SA)
[4] R v Lindsay [2013] SASC 104; R v Stevens [2010] SASCFC 1.
Section 269H of the Act provides:
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 is not just concerned with the presence of an underlying mental illness or infirmity of the mind. The test refers to the defendant's capacity to understand the charges against him and participate in the proceedings that stem from those charges.
As Smith J states in the case of R v Presser[5]:
He needs I think to be able to understand what it is that he is charged with. He needs to be able to plead to that charge and exercise his right of challenge. He needs to understand generally the nature of the proceedings namely that it is an inquiry into whether he did what it is he is charged with. He needs to be able to follow the course of proceedings in a general sense although need not of course understand the purpose of all the various court formalities.
[5] R v Presser [1958] VR 45
Those standards, are based on the well-known explanation given by Alderson B to the jury in R v Pritchard[6] require the ability (1) to understand the nature of the charge; (2) to plead to the charge and to exercise his 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.
[6] R v Pritchard (1836) 173 ER 135
The authorities such as Presser and more recent cases of Lindsay[7] and Stevens[8] make it clear that the defendant is not expected to understand the rationale for court procedure, or understand the court proceedings without the assistance of counsel and having the benefit of matters being explained to him. Rather, the defendant must be able to grasp a general comprehension of proceedings and provide his counsel with the necessary instructions to act on his behalf. It is important to assess this by taking into account the capacity that the defendant has in relation to day to day life and his adaptive capacity.
[7] R v Lindsay [2013] SASC 104
[8] R v Stevens [2010] SASCFC 1
Evidence of Dr Cayley
Dr Cayley is a registered psychologist with a Masters Degree in Psychology (Clinical) and a Doctorate in Psychology from Flinders University South Australia. As referred to above, defence counsel engaged the services of Dr Cayley to provide a forensic psychological report in relation to Mr Taylor’s fitness to stand trial in relation to the 2010 offences. Dr Cayley commenced assessment and psychometric testing of Mr Taylor. From this meeting Dr Cayley produced two reports dated 30 September 2011[9] and 7 October 2011[10]. These reports provided reasonable grounds for an investigation into Mr Taylor’s mental fitness to stand trial.
[9] Dr Cayley’s report dated 30 September 2011 – P9
[10] Dr Cayley’s report dated 7 October 2011 – D1
Dr Cayley administered the Kaufman Brief Intelligence Test (2nd Edition) This test assessed Mr Taylor’s personal verbal, non verbal and global intelligence. A subtest assessed Mr Taylor’s knowledge, range of general information, verbal concept and reasoning ability. In relation to Mr Taylor’s verbal skills, Mr Taylor was found to be equivalent to an average child aged 9 years and 6 months. In relation to non-verbal skills, Mr Taylor was assessed as equivalent to a child aged 7 years and 9 months. Overall, Dr Cayley was of the opinion that Mr Taylor’s level of intelligence fell within the “extremely low” range.[11]
[11] Ibid
With regard to Mr Taylor’s functional literacy, Dr Cayley administered a Wide Range Achievement Test. Taking into account Mr Taylor’s mathematical skills, reading comprehension and spelling, Dr Cayley concluded that Mr Taylor had the functional literacy skills of a child in the early years of primary school years 3 to 4.[12]
[12] Ibid
Dr Cayley reported that at the time of his interview Mr Taylor had been seeing a counsellor at ‘Headspace’ on a weekly basis for treatment for anxiety. There has been no evidence put before me in relation to this comment of Dr Cayley.
In relation to Mr Taylor’s fitness to stand trial, Dr Cayley was of the opinion that, due to Mr Taylor’s poor literacy skills and intellectual ability, Mr Taylor would not be fit to stand trial under section 269H(a) (b) and (c) of the Act.
In the addendum statement provided by Dr Cayley on 12 September 2013[13], she stated that Mr Taylor was able to articulate an understanding of the charges against him. He was further able to explain to Dr Cayley that he has recently had a change in solicitor due to “something that is 216”.[14] Although there is a slight error in recalling the subsection it is clear Mr Taylor was referring to section 269 of the Act. Mr Taylor further stated that he heard his counsel discussing the issue of unfitness in court but did not know what it meant. When questioned, he could not provide Dr Cayley with an explanation of what it meant to plead guilty or not guilty. Mr Taylor further explained that he did not understand what was being discussed in court proceedings and that there was no-one to explain to him what, in effect, was happening. In her report Dr Cayley concluded that Mr Taylor was unfit to stand trial.
[13] Dr Cayley’s report dated 12 September 2013 - D2
[14] Dr Cayley’s report dated 12 September 2013 page 9 - D2
Dr Cayley’s reports were tendered and she commenced giving evidence in September 2013. Whilst she was being cross-examined she became unwell. She was unable to return to court and the cross-examination was never completed. Both counsel agreed that in the circumstances I could not rely on Dr Cayley’s opinion, but there was no objection to me having regard to her reports in relation to the testing she had done, and the history she obtained. Indeed, as will become clear, other witnesses who were called had regard to her reports for these purposes. I have therefore, had regard to her reports for these purposes.
Evidence of Mr Broomhall
Mr Broomhall is a registered Psychologist and specialises in clinical and forensic psychology. Mr Broomhall met with the accused for forensic psychological assessments on 14 November 2013 and 13 February 2014. Based on these assessments Mr Broomhall provided a forensic psychological report concerning the accused’s fitness to stand trial dated 31 March 2014.
On the first meeting with Mr Broomhall, the accused undertook his initial interview and psychometric evaluation. After 1½ hours the interview and subsequent testing was discontinued due to the defendant's distraction and lack of concentration. The interview and testing resumed on the 13 February 2014. The latter appointment occurred over a period of two hours and consisted of an interview and psychometric evaluation.
During the latter interview, Mr Broomhall administered the following tests for psychometric evaluation: Wechsler Individual Achievement Test, Delis-Kaplan Executive Function System, Test of Memory Malingering, Wechsler Memory Scale and Depression, Anxiety Stress Scales. Based on the results of the psychometric testing Mr Broomhall concluded that the accused suffered from a mild intellectual disability. Mr Broomhall also found that the accused met the diagnostic criteria for Social Anxiety Disorder (Social Phobia).
Mr Broomhall did not undertake testing for the defendant's intellectual functioning and relied on the conclusions of Dr Field's reports. Mr Broomhall said:[15]
Given that Dr Field’s testing was the most recent and test scores were made available, I chose to use these results as the basis for forming opinion around mr Taylor’s intellectual tests scores.
A Wechsler Adult Intelligence Scale 4th edition test was administered by Dr Field to the accused in August 2013. Dr Field states:[16]
On current testing using an abbreviated but longer version of the Wechsler Adult Intelligence Scale 4th edition I once again formed the view that Mr Taylor is of “extremely low” (i.e. intellectually retarded) range as defined by the Wechsler scale. I note that Mr Reid’s opinion is that he has a somewhat higher score, but would suggest this is likely on the basis of somewhat differing test instruments.
[15] Mr Broomhall’s report dated 31 March 2014 page 12 – D10
[16] Dr Field’s report dated 26 August 2013 page 11 – D5
In regard to verbal executive functioning, Mr Broomhall found the defendant's scores were again within the extremely low range. In verbal immediate and verbal delayed memory testing, the accused initially scored in the low-average range, but after several attempts the defendant demonstrated improvement and the latter results placed the accused in the average range. As to reading comprehension, Mr Broomhall concluded that Mr Taylor has a reading age of 8-9 years. Mr Broomhall found no evidence of malingering.[17]
[17] Mr Broomhall’s report dated 31 March 2014 – D10
A Depression and Anxiety Stress Scale was verbally administered to the accused by Mr Broomhall. The Self Reported Scale indicated the accused experiences anxiety in the extreme range (99% percentile), depression in the moderate range, and stress in the severe range.[18]
[18] Mr Broomhall’s report dated 31 March 2014 page 14 – D10
From the results of the psychometric tests and interview, it is Mr Broomhall's opinion that the accused is unfit to stand trial. In coming to this conclusion Mr Broomhall stated:[19]
Beyond this Mr Taylor's intellectual capacity was functionally compromised to the extent that even without such anxiety, he would in my opinion have difficulty in understading the majority of aspects of legal proceedings as required in R v Presser. Mr Taylor's ability to understand and respond rationally to the charges or allegations upon which the charges are based was significantly compromised in my opinion by his reading comprehension age of 8 to 9 years and his intellectual disability (extremely low range). I believe that Mr Taylor's ability to understand and respond rationally to the current charges was significantly compromised.
[19] Mr Broomhall’s report dated 31 March 2014 page 17 – D10
In relation to section 269H(b) and (c), Mr Broomhall was of the opinion that the defendant's social anxiety and intellectual disability is such that the accused cannot understand his procedural rights in a courtroom environment. Mr Broomhall stated:[20]
In my opinion, the combination of an intellectual Disability and Social Anxiety Disorder were particularly evident within the court or even professional consultation situations. In my opinion social anxieties such as suffered by Mr Taylor would impair his ability to attend and concentrate in situations which he found anxiety provoking, such as in court or professional consultations. It seemed possible that the 'improvements' in verbal working memory reported by Mr Reid may be in some part related to his degree of anxiety at the time of the appointments. That he tested in the average range (9/10) for delayed memory was after 4 presentations of the same word list. This repetition would not be provided in court. As such, I believe Mr Taylor’s initial verbal memory (low average range) was more indicative of his true verbal memory capacity and further, when situational anxiety of court is added, I would expect his verbal memory to be even poorer, effectively rendering him incapable of retaining information presented verbally in court. This would provide too great an impediment to his ability to give meaningful instruction in my opinion.
[20] Mr Broomhall’s report dated 31 March 2014 page 17 – D10
Upon reviewing the defendant's record of interview, Mr Broomhall formed the opinion that the defendant was able to comprehend his rights in a police setting, but that he would not be able to exercise his procedural rights in a courtroom because they were “less familiar and of a complexity which outstripped his cognitive abilities”. Mr Broomhall concluded that:[21]
Mr Taylor could not explain the functions of a jury, was not cognisant of different types of evidence, could not fully elucidate the role of the judge or prosecution and could not name other court officers. I do not believe that Mr Taylor could give necessary instruction to his legal counsel in the course of proceedings. In my opinion he is more likely to switch off from being overwhelmed and anxious and this would certainly impair his ability to provide meaningful instruction to his legal representative. In my view it is most likely that Mr Taylor would revert to a position of social acceptability, agreeing with whatever was put to him to ‘get it over with’. I do not believe that Mr Taylor possessed the cognitive capacity (which is further undermined by his situational social anxiety in the court room), to understand the nature of the proceedings at a sufficient level to be able to communicate to his legal counsel his version of the facts.
[21] Mr Broomhall’s report dated 31 March 2014 page 17 – D10
On the 9 April 2014 Mr Broomhall was called by defence counsel to give evidence. In examination-in-chief, Mr Broomhall provided the court with the details of his interview with Mr Taylor and the psychometric tests administered. In relation to his conclusions of unfitness under section 269H of the Act, Mr Broomhall stated that if the charges were broken down sufficiently for Mr Taylor to a level that he was able to understand, it would be likely that Mr Taylor would be able to understand the information and retain it. He said:[22]
QWhat in relation to those allegations separately, what in relation to the allegation in respect of the 2010 offending is he, in your opinion, unable to respond rationally to.
AThe 2010 offending. I separated the charges from the allegations. I thought it was quite possible that – probable that if the charges were broken down sufficiently and explained to him at a level that he could understand, that it was likely that he would be able to understand that information and retain it.
[22] TT page 18: 11-16
However, as to whether Mr Taylor would be able to respond “rationally” to the charges, Mr Broomhall stated it was possible that Mr Taylor would respond in a manner that he believed would resolve the situation rather than responding in a true and accurate way.[23]
[23] TT page 19
With regard to Mr Taylor exercising his procedural rights pursuant to s269H(b) of the Act, Mr Broomhall was of the opinion that Mr Taylor would not understand the rationale for empanelling jurors or exercising his right to challenge. He said:[24]
QWhat’s your opinion about whether or not Mr Taylor could give instructions about challenging jurors.
AI’m not sure that Mr Taylor would understand the rationale for challenging a juror.
[24] TT page 23:31-34
Mr Broomhall did, however, accept that if the process was again broken down to a level that Mr Taylor could understand, with the guidance of his solicitor, Mr Taylor would grasp the process of challenging a jury. Mr Broomhall did not give consideration as to whether Mr Taylor had the capacity to elect for trial by Judge alone. It was further suggested that Mr Taylor would become confused if he gave evidence and possibly be amenable to suggestions.
With regard Mr Broomhall’s findings in relation to section 269H(b) and (c) of the Act, it was evident in Mr Broomhall’s cross-examination that there were deficits in his interview and subsequent conclusions surrounding Mr Taylor’s fitness. In relation to Mr Broomhall’s questions concerning persons present in the court room, I am of the opinion that Mr Taylor gave a simplistic yet accurate account of what an average person would expect to present during a court proceeding. He was able to name the primary parties comprising of the judge, prosecution, and his defence counsel. I accept Ms Boord’s submission that this would be a reasonable and accurate response when questioned as to whom would be present in court, despite not naming every person in court it demonstrates an understanding of those that Mr Taylor may well expect will play the most significant role in relation to him.
With regards to Mr Taylor’s understanding of how a jury is to be empanelled it was evident from Mr Broomhall’s evidence that there was a high expectation as to what he believed Mr Taylor should understand of jury empanelment. There is no evidence before me that anyone has ever explained to Mr Taylor how he could expect to challenge a juror nor that has he ever experienced this process personally. It is reasonable that Mr Taylor has little understanding of the concept in those circumstances. The issue is whether he has the capacity to understand if it is explained to him. The opinion of Mr Broomhall is that he would not be able to retain or follow an instruction from counsel or indeed give instructions to his counsel.
Mr Broomhall considered that Mr Taylor would be unable to follow the proceedings especially when they became more complex and by reason of his limited intellectual capacity could not adequately instruct. He said:[25]
QCan I ask you what your general opinion is about sub-s. (c), that is to understand the nature of proceedings and follow the evidence or the course of proceedings. Can I ask you that specifically in relation to the aggravated robbery matter, which probably would go four or five days with normal breaks rather than more frequent breaks.
AAs I’ve said before, I would have concerns because of the context of the court impacting Mr Taylor’s anxiety, which would negatively impact his attention and concentration and then factored with his intellectual functioning at the low range that it is. Both of those factors together would form quite an impediment, particularly over a period of time. So, as I said, if you’ve got one concept that is being explained to him in a simplistic way, he may understand that in isolation, but the more of those blocks you add over a period time, he is going to reach, before the average person in the population, he will reach a threshold where he can’t take on any more information and his ability to be able to understand what is going on in court will decline significantly the more time proceeds, and that would give me significant concerns about his ability to be able to follow the course of proceedings and then provide instructions without that understanding of what has actually happened.
[25] TT: 43:21 – 44:8
Evidence of Dr Field
Dr Field first gave evidence during the Part 8A hearing conducted on 16 September 2013. His evidence resumed on 10 April 2014. Dr Field has provided the court with several reports dated 8 July 2012, 26 August 2013, and notes dated 5 September 2013.[26]
[26] Exhibits D4, D5, D6
Dr Field administered to the defendant a series of psychometric tests, including Wechsler memory scale 3rd edition, Wechsler Adult Intelligence Scale 4 edition, Symbol Search and Coding, Kendrick Object Learning test, trail Making tests parts A and B, Rey-complex Figure Copy Test-Copy and Recall conditions. These tests compliment those administered by Mr Broomhall. From assessments conducted with Mr Taylor, it was Dr Field’s opinion that Mr Taylor is of very low intellectual level. Mr Taylor was found to have a verbal Comprehension Index of 63 which falls within the extremely low qualitative description level, otherwise considered to be in the mentally retarded range (intellectually disabled range). Dr Field concluded that Mr Taylor was unfit under all three provisions of section 269H.
Dr Field was referred to the ‘new’ report of Mr Reid[27] including the results of the assessment conducted by Mr Reid with the defendant’s learning and recall skills. Dr Field amended his earlier conclusions that Mr Taylor was better than previously considered and, for that reason, it was more likely that he is now able to learn, follow and understand the nature of proceedings, but maintained the defendant was not fit to stand trial. He said:[28]
Given the improved performance from Mr Taylor on this task I see that Mr Reid his page 7 at Mr Taylor’s learning and recall skills are probably likely better than was previously considered and that for this reason it was more likely that he is now able to learn follow and understand the nature of the proceedings.
…
I would reiterate at this stage that my opinion regarding his unfitness to plead was essentially on the basis of his low intellectual function which I believed and still believe would render him incapable of standing trial pursuant to Section 269H. I did not however rely on his memory test results in relation to this opinion as his memory test results at that stage were relatively well preserved. I would still maintain that he is unable to follow the nature of proceedings, but this in fact on the basis of his low intellectual function per se, and not his memory performances.
[27] Dr Field’s report dated 26 August 2013 page 7 – D5
[28] Dr Field’s report dated 26 August 2013 page 8 – D5
In relation to Mr Taylor’s understanding of offences of 2012, Dr Field stated:[29]
He was able to indicate that he understood this was a criminal trespass matter that was said to have occurred in Craigmore in around March 2012. He says that once again, he had no direct recall of the alleged incident, but said that he had subsequently been arrested and interviewed by Police. He said that “a cop told me it showed pictures of me outside the house and the dope got taken from the place”.
He says that he had been shown stills from an alleged security video and they were stills of him standing on the front step.
He says that furthermore he recalls and told Police that he was spending time with “ a guy named Ant” and recalls being with him earlier that night.
He was reading through statements that referred to Anthony Allen (he is not functionally literate but his girlfriend helped him read this), and he realised that Anthony Allen must be “Ant” that he referred to. He says that he only met “Ant” that night- he was just off ‘home D’. He said that they had gone on a bender and smoked meth two days beforehand and were still high. I then reminded him that he had met Ant only that night and he agreed yes and said that he had met him earlier “when I was buying the gear’. He says this was in the Elizabeth area. He said then having smoked the crystal meth they travelled in his car, a blue VX Commodore, although he said that he then had a blackout. He then recalls Police coming to him at the house the next day and arresting him.
As noted the Police had alleged that he was involved in criminal trespass at a house, which was said to be a drug lab. He says that he did not know this house beforehand but Ant new of it. He says that he realised afterwards that he had not actually entered the premises but he was merely standing at the front door, but he believes that Ant might have actually have entered the premises.
[29] Dr Field’s report dated 26 August 2013 page 8 – D5
Dr Field was of the opinion that Mr Taylor’s ‘general’ memory performances are well preserved, and probably consistent with those expected in his general low intellectual level, although of course one would acknowledge the possibility that he has a series of acute memory losses associated with his repeated episodes of intoxication.
Dr Field gave evidence that he had come to the conclusion, on the basis of the general presentation at interview and also on the performance on the various sub-tests and the Rey Intelligence Scale, that he would have great difficulty receiving verbal information and comprehending it adequately, which would make it difficult for him to understand the minutiae of a trial. Further, he said that he would have particular difficulty in understanding any evidence from others and be in a position to contribute his own defence by raising matters of objection.[30] He went on to say that he believed that Mr Taylor would be an individual who would tend to agree with anything that was said to him. If it was put to him that something had occurred and he had no recollection of it, his concern was that Mr Taylor would tend to agree with it whether it was actually correct or not. He said that his answer may depend upon the way the question was framed.[31]
[30] TT 46
[31] TT 50
Dr Field was asked various questions in relation to Mr Taylor’s ability to effectively exercise his procedural rights. It became clear that Dr Field had a limited understanding of what the procedural rights were in respect to a trial.
Dr Field said he also had concerns that if there was a complex trial that Mr Taylor may have difficulty in holding together the information in a cogent way over a number of days so that he could understand or respond to it.
When Dr Field was recalled to give evidence in April 2014, he was questioned about a Facebook page that had come to light in the interim. Dr Field gave evidence that the fact that Mr Taylor had the capacity to communicate via Facebook on a smart phone did not alter his opinion as to his fitness to plead. He maintained that Mr Taylor was unfit for trial.
Dr Field was also asked a number of questions in relation to the CCTV footage that had been taken at the time of the 2012 offences. Dr Field gave evidence that despite the fact that Mr Taylor would see himself on the footage he was not sure that he would be able to reflect his motivation at the time.
Dr Field was cross-examined. During his cross-examination it became clear that much of what Dr Field said in relation to the capacity of Mr Taylor emanated from the fact that Mr Taylor was intoxicated in respect of both events and purported to have no memory of them. This lack of memory may have been a function of the intoxication rather than any intellectual functioning. He was cross-examined about the fact that Mr Taylor was able to give a history in relation to the court proceedings in respect of both of these matters including the fact that he had withdrawn a guilty plea and that there was a hearing being undertaken in relation to his fitness to plead. He was also cross-examined about the knowledge that Mr Taylor had in respect of the allegations that he faced in respect of both matters. It was put to him in cross-examination that Dr Field had not properly explored with him his ability to understand what he was being charged with or to respond to the allegations. Dr Field agreed that he had not done that. He said that:[32]
[32] TT 180:12-181:3 and 181:15-182:21
AI form the opinion on the basis I felt he was unable to understand or respond rationally because of his inconsistency in responding to my questions about the matter.
QYou’ve talked to us about the pleading guilty and the withdrawal of the guilty plea.
AYes.
QI suggest to you there is nothing inconsistent about his comment about that particular part of what occurred. Do you agree with that.
MR STEWART: That is not the evidence.
HER HONOUR: You mean the mere fact that he withdrew his plea:
MS BOORD:Yes.
AI formed the view that he didn’t understand the nature of the guilty plea in the first place.
XXN
QWhat questions did you ask him to form that view about his understanding of the nature of the guilty plea.
AI asked him to describe the history of the case.
HER HONOUR
QAnd what did he say.
AEssentially, his only comment was, as I said, there had been an adjournment and time run out and that was his really – his only understanding, of the time.
QDid you say ‘What do you meant by that?’
ANo.
QDid you ask him any follow-up questions in relation to that.
ANo.
....…
QI just want to take you to the second paragraph. You write this, don’t you: ‘As noted, he has no recall of the alleged events. He says, however, that he was sitting at home that night when the police arrived and he was told that he was being accused of taking money from a lady who was getting cast out of an ATM.’
AYes.
QPutting to one side the fact that he can’t recall the events on the night, he does appear, I suggest, to tell you that he understands what the allegations are.
AHe does recall – well, he recalls the arrival of the police and he was able to describe that that was the accusation, yes.
QWould that not suggest to you that he does understand the nature of the allegations in relation to those 2010 offences.
AI think he understands the allegation to the extent that he was told that he was seen at that particular time and he’s essentially agreeing with what’s being put to him.
QWhere is he agreeing with what’s being put to him.
AHe told me that was what was put to him and he appeared not to disagree with it.
QAt that point, you haven’t asked him any questions about his understanding of the nature of the allegations, have you.
AThat’s true.
QAny prompting from you or any questions from you, he spontaneously tells you what the nature of the allegations are in relation to the 2010 offences.
AYes. I asked him to tell me what he remembered that night. He did explain that he had no recollection of the time of the alleged offence. He says that he recalls the police arriving later in the evening and told him he was being accused of taking money and he essentially didn’t disagree with that proposition.
QHe remembered what the allegation was, didn’t he.
AHe told me that was the allegation, yes.
QBecause he remembered what it was.
AYes.
QIf I suggest to you that is what the allegation actually is, would that not suggest to you that Mr Taylor understands what the allegation is.
AYes, in that context. Once again, it depends on the way that the allegation is put to him. It has been put to him in that way and he has not disagreed with it.
I found much of the cross-examination of Dr Field very confusing. Dr Field appeared to think that Mr Taylor had made admissions to the offending from 2010. After he re-read the transcript of the interview with the police he was further cross-examined.[33]
[33] TT 186:16-33
QHave you had an opportunity now to read all of that transcript.
AYes, I have.
QDo you recall the last few answers and questions that you were being asked about by her Honour in relation to what he told the police about the offending.
AYes.
QHaving now read the transcript, is that accurate.
ACan I be reminded of my wording, my response?
QI think what you advised her Honour or gave evidence was he made admissions to the offending to the police.
AYes.
HER HONOUR
QDo you still adhere to that.
AWell, I see from the transcript that he’s been presented with a large amount of descriptions of events that he says he has no recollection of and he appears to be agreeing with all of them.
The questioning continued in respect of the record of interview in 2010. An alternative scenario was put to Dr Field; that was that rather than making an admission in respect of each of the allegations put to him, he was simply acknowledging that he had heard what was being said to him and further, Dr Field agreed with that proposition.[34] However, Dr Field then returned to his theme that Mr Taylor was inconsistent in his responses therefore indicating that he did not appear to understand.[35]
[34] TT 188
[35] TT 190:5-28
QDo you recall, now, the way that he responded to this series of questions.
AI felt at the time, and I feel now, that he was being inconsistent in the way that he was responding.
QI don’t understand what that means. What do you mean by being inconsistent in the way he’s responding.
AHe seems to me to be agreeing to very specific propositions put to him of things that occurred on that night and then literally on the same page he’s disagreeing that he was present or that any of it could have happened.
QIn these records of interview, are you familiar with a process that the police sometimes adopt where they put the allegations, as it’s said –
AYes, I am.
Q– to people, so somebody might hear it said ‘It’s alleged that you ran down the street without your undies on’.
AYes.
QAnd the persons says ‘Yeah’. Not ‘Yes, I did do that’.
AYes.
QBut a response to the proposition that’s put ‘Yes, I understand that’s the allegation’.
AYes.
Inferences drawn from ROI on 18 October 2012
Much of the cross-examination of Dr Field revolved around his interpretation of the record of interview that has already been referred to. I found Dr Field’s interpretation of the interview and the conclusions that he drew from it to be rather curious. He based much of his assessment of Mr Taylor on the fact that Mr Taylor readily agreed with the propositions that were put to him and that Mr Taylor would agree with propositions even where he knew them not to be true. I cannot accept this.
Dr Field was also cross-examined about the understanding Mr Taylor had of his legal rights. Dr Field indicated that he was not sure that Mr Taylor understood his legal rights. When asked to indicate in the interview where that was apparent he gave as an example the fact that Mr Taylor had been told he was entitled to a phone call to which Mr Taylor responded he did not want one but later he changed his mind and said that he did want a phone call. Dr Field interpreted this as being indicative of his lack of understanding. Dr Field also considered that the response made by Mr Taylor in respect to the ‘caution’ may have been ‘parroting’ rather than understanding the concept.
Intoxication
Both reports of Mr Broomhall and Dr Field concede that the defendant is unable to recount circumstances surrounding the 2010 offending due a ‘bender’ in which Mr Taylor has suggested he had abused alcohol and amphetamines for 5 days leading up to the offence.
All experts have conceded to the fact that Mr Taylor has a poor recollection of events concerning the charges he faces due to his level of intoxication at the time of the offences. Intoxication is not a ground of impairment or disorder of process as explicitly stated under section 269A(1) of the Act. However, Mr Taylor has been consistent in explaining to experts that his offending occurs when he is intoxicated. He stated to Dr Cayley, as outlined in report dated 7 October 2011, that when he is ‘straight’ he is too scared to offend but that when he is drunk he has ‘no shame’ and will do anything. This demonstrates a high level of reasoning and self awareness. He is not, as has been suggested, providing ‘parroting’ or agreeable answers. He is able to provide a logical explanation for his engagement in offending.
Conclusion
Mr Taylor is a 23 year old Aboriginal man. He lives with his partner and their two children in their own home. He maintains the premises and cares for the children including cooking basic meals. He is currently unemployed and in receipt of a Newstart Allowance. He has been briefly employed at Boystown through a job network. His sister Cassandra gave evidence. She said that she assists her brother with his Centrelink forms and assists him in relation to other appointments that he may have. She is currently unwell and unable to assist him.
Mr Taylor has spent a significant amount of time on home detention bail. Cassandra gave evidence that he is compliant with his home detention bail and understands the conditions of that bail. It is only when he is not subject to these conditions that he allegedly commits offences. He has now been compliant with the conditions for over two years. Cassandra also gave evidence that he suffers from anxiety and she sees him cry like a child. I witnessed that behaviour on viewing the entirety of P8. When Cassandra entered the interview room Mr Taylor broke down and appeared to be inconsolable for some time.
Prior to the introduction of Cassandra into the equation, Mr Taylor had spoken to the police about a number of different topics. He had made decisions as to whether to speak to the police at that time or later. He appeared to understand his rights and discuss them openly with the police. At one stage he determined that he would answer questions and then desisted from that to await the arrival of Cassandra. Mr Taylor is somewhat childlike in relation to some of his responses but nevertheless appears to understand and to make his own independent decisions as to what he wished to do even in the face of two police officers who are persons of authority.
The interview of Mr Taylor on the 18th 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.
All the experts who examined Mr Taylor considered that he had a low to extremely low level of intelligence. I accept that.
I have had regard to all of the material that has been tendered before me. It is plain that when asked, Mr Taylor is able to explain the charges and the allegations that he faces; he does that in simple terms and consistently on each occasion. He is able to respond rationally to them.
In respect of section 269H(b) of the Act although the expert witnesses have some doubt in respect of his exercise of his procedural rights they have not properly taken into account the fact that he is represented by counsel and in the vast majority of cases any person charged with a serious criminal offence will rely upon the advice proffered by counsel in respect of any of these issues.
In respect of his ability to exercise his rights, this is a difficult question to answer. I have not been provided with any information that any person has in fact attempted to even explain to Mr Taylor what procedural rights he has and to see whether or not he has the ability to exercise those rights; similarly, in relation to the nature of the proceedings. Mr Taylor has, when asked about any proceedings by the experts, been able to explain them in simple terms. That is that he is charged with particular offences, that there has been an investigation in relation to fitness, that he entered a plea of guilty that was vacated and it appears from those answers that, to date at least, he has been able to understand the nature of the proceedings and to follow the course of the proceedings. He will be represented by counsel. He also has a very able solicitor. I have not been presented with any evidence that any person has attempted to explain the nature of the proceedings of the evidence to be elicited in either of the charges. It needs to be understood that Mr Taylor does not have to understand the minutiae of the evidence to be given, the general thrust of the evidence will suffice.
I have no doubt that Mr Taylor will be at a disadvantage when compared to some other defendants who appear in this jurisdiction. However, neither of the charges are particularly complex. It may be that counsel will need to take additional time during the course of the trial to answer any questions that Mr Taylor has, or explain the proceedings as they have occurred to date. What needs to be remembered is that Mr Taylor needs to have a grasp of the proceedings rather than an intimate understanding of everything that is lead, in particular by the forensic witnesses in these cases.
I am not satisfied on the balance of probabilities that Mr Taylor is unfit to stand trial for the offences that I have under consideration. I do appreciate that his level of anxiety may at some stages require that some additional time be taken to ensure that he is able to sit and to listen to the evidence and to comprehend what is happening in court at any particular time. Such allowances should be made for him during the course of the trial.
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