R v W, R - [2019] SASCFC 33

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v W, R
[2019] SASCFC 33
Judgment of The Full Court
(The Honourable Justice Blue, The Honourable Justice Stanley and The Honourable Justice Lovell)
11 April 2019
CRIMINAL LAW - PROCEDURE - FITNESS TO PLEAD OR BE TRIED
This is an appeal from an order made by a Judge of the District Court that the respondent is mentally unfit to stand trial pursuant to s 269H of the Criminal Law Consolidation Act 1935 (SA) (the CLCA).
The respondent is 81 years of age. He is charged with 21 counts of sexual offending against 13 complainants. The Judge found that the respondent suffers from vascular dementia resulting in mild impairment in executive functioning, some short-term memory loss and patchy long-term memory loss. The Judge found the respondent did not establish he was unfit to stand trial on the basis of s 269H(a) or (c). The Judge found the respondent unfit to stand trial pursuant to s 269H(b). The basis of the Judge’s finding was that the respondent is unable to exercise his procedural right to give evidence and to exercise his procedural right to silence.
The Director of Public Prosecutions appeals the finding as a “key decision” pursuant to s 269Y of the CLCA.
Held per Stanley J (Blue J agreeing), granting permission to appeal and allowing the appeal:
1. The Judge correctly concluded that the lack of ability to be self-protective when giving evidence did not necessarily render the respondent unfit to stand trial.
2. For a finding of unfitness to be made, the Court must be satisfied that the accused’s mental processes are so disordered and impaired that he or she is wholly unable to satisfy the test in s 269H. The Judge in this matter did not address the statutory test in those terms. The Judge erred in applying the wrong test in determining whether the respondent is unfit to give evidence.
3. The findings of the Judge amount to no more than a conclusion that there might be a risk of unreliability in the evidence given by the respondent. The risk that some evidence the respondent might give is unreliable cannot found the conclusion that he is unfit to give evidence.
4. The Judge’s finding that the respondent cannot exercise his right to decide whether to give evidence in his own defence, based on the evidence of Dr Seidel, cannot stand.
5. Permission to appeal granted, appeal allowed and the matter remitted to the Judge for the trial of the respondent.
Held per Lovell J, granting permission to appeal and allowing the appeal:
1. The primary Judge was in error in concluding that the right to silence was a procedural right to which s 269H applies.
Criminal Law Consolidation Act 1935 (SA) Part 8A Division 3, s 269H, s 269I, s 269Y; Evidence Act 1929 (SA) s 25, referred to.
R v Hayles (2018) 131 SASR 186; R v Presser [1958] VR 45; R v Mailes [2001] NSWCCA 155; R v Rivkin (2004) 59 NSWLR 284; R v Tier [2001] NSWCCA 53, applied.
Eastman v The Queen (2000) 203 CLR 1; Kesavarajah v The Queen (1994) 181 CLR 230; Ngatayi v The Queen [1980] 147 CLR 1; R v Hayles [2017] SASC 182; R v W, R [2018] SADC 55, discussed.
R v Abdulla (2005) 93 SASR 208, considered.

R v W, R
[2019] SASCFC 33
Court of Criminal Appeal: Blue, Stanley and Lovell JJ

BLUE J: I agree with the conclusion of Stanley J, for the reasons given by his Honour, that the Judge erred in finding the respondent unfit to stand trial within the meaning of section 269H of the Criminal Law Consolidation Act 1935 (SA) (the Act) on the basis that he is unable to exercise his (procedural) right to give evidence in his defence (the first question).
I agree with the conclusion of Stanley J that the Judge erred in finding the respondent unfit to stand trial within the meaning of section 269H on the basis that he is unable to exercise his (procedural) right to elect whether or not to give evidence in his defence (the second question).
As to the first question, the Judge gave extensive reasons for reaching her conclusion and I have nothing to add to the analysis of those reasons by Stanley J.
The Judge turned to the second question only after reaching her conclusion on the first question in the following terms:
I find that as a result of a combination of the accused’s mild executive dysfunction and poor short-term memory, being products of his vascular dementia, in the context of his low intelligence level and verbal comprehension difficulties, the accused is unable to exercise his right to give evidence.
The Judge then immediately expressed her conclusion on the second question in the following terms:
In addition, I accept the evidence of Dr Seidel that the accused is unable to exercise his right to silence as a consequence of his executive dysfunction.
As can be seen, the Judge’s reasoning leading to her conclusion on the second question is cryptic. This is evidenced by the fact that the three members of this Court have reached three different interpretations. Four theoretical interpretations were canvassed at the hearing of the appeal.
The first interpretation is that the Judge’s conclusion on the second question was consequential on the conclusion on the first question and the Judge’s reasoning was a syllogism: if the respondent cannot exercise the right to give evidence he cannot exercise the right to elect whether to give evidence or remain silent; the respondent cannot exercise the right to give evidence (the first conclusion); therefore he cannot exercise the right to elect whether to give evidence or remain silent (the second conclusion). The major premise in this syllogism may be accepted and the Director does not challenge it on appeal. However the minor premise fails because the Judge’s conclusion on the first issue was erroneous for the reasons given by Stanley J. It follows that the conclusion of the syllogism is also erroneous.
The second interpretation (adopted by Stanley J) is that due to his executive dysfunction the respondent does not have sufficient understanding of the consequences of giving evidence or remaining silent to make a meaningful choice whether to give evidence or remain silent. Such a conclusion would be erroneous because it would be directly contrary to explicit findings by the Judge earlier in her reasons for the reasons given by Stanley J.
The third interpretation is that, if the respondent elects to give evidence, due to his executive dysfunction he would be unable to exercise a right to remain silent, ie decline to answer questions the answer to which might incriminate him of the offences charged. Such a conclusion would be erroneous because, once an accused elects to give evidence, he is required to answer questions regardless of whether the answer might incriminate him of the offences charged.
The fourth interpretation (adopted by Lovell J) is that, when interviewed by the police in 2015, the respondent was unable to exercise his right to silence because of his executive dysfunction evidenced by his answering questions to his potential detriment and in the absence of legal advice. Such a conclusion would be erroneous because, while a person interviewed by the police has a legal right to silence, that right is antecedent to and has nothing to do with the procedural rights the subject of section 269H for the reasons given by Lovell J.
In light of the brevity of the conclusion expressed by the Judge and the fact that it immediately follows the conclusion on the first question and the obvious difficulties in the Judge’s reasoning identified above on the other interpretations, I consider that the first interpretation is the correct one. On that interpretation the Judge’s conclusion on the second question was erroneous because the Judge’s conclusion on the first question was erroneous. Even if the second, third or fourth interpretations were adopted, the Judge’s conclusion on the second question would be erroneous for the reasons given above.
For these reasons, I agree with the conclusion of Stanley J that the Judge erred in finding the respondent unfit to stand trial within the meaning of section 269H on the basis that he is unable to exercise his right to elect whether or not to give evidence in his defence.
I agree with the orders proposed by Stanley J for the disposition of the appeal.
STANLEY J:
Introduction
This is an appeal from an order made by a judge of the District Court that the respondent is mentally unfit to stand trial pursuant to s 269H of the Criminal Law Consolidation Act 1935 (SA) (the CLCA).
The respondent is 81 years of age. He is charged with 21 counts of sexual offending against 13 complainants. The alleged offending spans a period of about 50 years from 1962 to 2013. The majority of complainants allege several offences. The alleged victims include members of the respondent’s family and friends. The charges relating to three particular complainants allege a broader course of conduct including allegations of sexual intercourse.
The basis of the judge’s finding that the respondent is unfit to stand trial, broadly speaking, is that he is unable to give evidence and to exercise his right to silence.
That conclusion must be understood in the context of s 269H which 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.
The applicant appeals pursuant to s 269Y of the CLCA. Section 269Y(3) provides that an appeal lies with permission of the appropriate appellate court against a key decision by the court of trial. A “key decision” is defined in s 269Y(4)(b) to include a decision that the defendant is, or it not, mentally unfit to stand trial.
The judge conducted an investigation under Division 3 Part 8A of the CLCA. She heard evidence from four expert witnesses who examined and assessed the respondent, namely, a neuro-psychologist Dr Emma Fitzgerald, a psychologist Mr Richard Balfour, another neuro‑psychologist Dr Colin Field and a psychiatrist Dr Geoffrey Seidel. In addition, the judge received evidence of two police interviews with the respondent in 2015 upon his initial arrest and subsequent arrest.
In extensive reasons, the judge found that the respondent suffers from vascular dementia. This is a degenerative condition. The judge found there has been some deterioration in his condition since 2015. The respondent is an unsophisticated man of limited education. He demonstrates borderline verbal comprehension skills.[1] While he does not have an intellectual disability,[2] the judge found his vascular dementia results in mild impairment in executive functioning, some short-term memory loss and patchy long-term memory loss.[3] The judge found it was more likely than not the respondent suffers a mild neurocognitive disorder.[4] The evidence did not support a finding that the respondent has severe or advanced dementia.[5] The judge found the progression of the respondent’s vascular dementia is likely to be a slow, subtle and gradual deterioration over time.[6] The respondent is not suffering from a specific language disorder.[7] There is no evidence that the respondent has suffered severe global alcohol related brain damage or a global amnesic syndrome that had any devastating effects on his verbal or visuo-spacial memory.[8] On the other hand, the respondent does suffer from particular difficulties with short-term memory for verbal information.[9] While he is able to encode meaningful and structured verbal information, he has difficulties in his ability to retrieve that information. However, with assistance and prompting by way of a reminder of such material, he is able to recall that information with some degree of accuracy.[10] The respondent’s performance in testing of his working memory was in the low/average and average ranges.[11] Testing for processing speed revealed his performance was in the average range. The judge found that, like any person being asked to recall memories from many years ago, the respondent might struggle to recall specific details or circumstances.[12] In this regard he was not in a significantly worse position that most other 81-year-olds being asked to recall events from many years ago.[13]
[1] [2018] SADC 55 at [513].
[2] [2018] SADC 55 at [622].
[3] [2018] SADC 55 at [512].
[4] [2018] SADC 55 at [549].
[5] [2018] SADC 55 at [514].
[6] [2018] SADC 55 at [531].
[7] [2018] SADC 55 at [539].
[8] [2018] SADC 55 at [562].
[9] [2018] SADC 55 at [551].
[10] [2018] SADC 55 at [552].
[11] [2018] SADC 55 at [564].
[12] [2018] SADC 55 at [561].
[13] [2018] SADC 55 at [560].
The judge found the respondent did not establish he was unfit to stand trial on the basis of s 269H(a) or (c). In making those findings, the judge found that the respondent had not established that he does not understand the allegations or cannot respond rationally to them,[14] nor had he proved that he was unable to follow the proceedings.[15]
[14] [2018] SADC 55 at [755].
[15] [2018] SADC 55 at [643].
The judge found the respondent unfit to stand trial pursuant to s 269H(b) on the basis he is unable to exercise his procedural right to give evidence and is unable to exercise his procedural right to silence despite having an understanding of the right.[16] A close reading of the judge’s reasons disclose that her reference to the respondent’s inability to exercise his right to give evidence means that she considers he is unable to give evidence on his trial. I am also satisfied that reading the judge’s reasons as a whole, and in context, her finding that the respondent is unable to exercise his procedural right to silence is a finding that he is unable to make a rational decision whether or not to give evidence in his own defence.
[16] [2018] SADC 55 at [707]-[709], [756].
The test for unfitness to stand trial
Pursuant to s 269I of the CLCA an accused is presumed to be fit to stand trial unless he or she rebuts the presumption on the balance of probabilities. It is not sufficient to rebut the presumption that a doubt is raised about fitness.
Section 269H enshrines the common law test of fitness to stand trial as set out by Smith J in R v Presser.[17] In enacting s 269H Parliament did not intend to change the common law.[18] Fitness to stand trial is to be considered in the context of the degree of complexity of the charges which the accused faces and on the basis that the accused is represented.[19] The test is well settled. It is to be applied in a reasonable and common sense fashion.[20] At issue is the question of comprehension rather than skill.[21] Properly understood, the minimum requirements may not be very difficult to meet.[22]
[17] [1958] VR 45 at 48.
[18] R v Abdulla [2005] SASC 399 at [73]-[76], (2005) 93 SASR 208 at 226-227.
[19] R v Hayles [2018] SASCFC 58 at [8]-[9].
[20] R v Presser [1958] VR 45 at 48, Kesavarajah v The Queen [1994] HCA 41 at [30], (1994) 181 CLR 230 at 244; Ngatayi v The Queen [1980] HCA 18 at [8], (1980) 147 CLR 1 at 8.
[21] Eastman v The Queen [2000] HCA 29 at [22], (2000) 203 CLR 1 at 13.
[22] Eastman v The Queen [2000] HCA 29 at [298], (2000) 203 CLR 1 at 99.
In R v Presser[23] Smith J said:[24]
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 the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any.
[23] [1958] VR 45.
[24] [1958] VR 45 at 48.
The High Court approved this test in Kesavarajah v The Queen[25] where the majority said:[26]
In Reg. v Presser, Smith J. elaborated the minimum standards with which an accused must comply before he or she can be tried without unfairness or injustice. Those standards, which are based on the well-known explanation given by Alderson B. to the jury in R. v Pritchard, require the ability (1) to understand the nature of the charge; (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.
[25] [1994] HCA 41, (1994) 181 CLR 230.
[26] [1994] HCA 41 at [31], (1994) 181 CLR 230 at 245.
In Ngatayi v The Queen[27] the majority of the High Court said:[28]
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. We respectfully agree with the view expressed by Smith J. in Reg. v. Presser that the test needs to be applied “in a reasonable and commonsense fashion”. Smith J. went on to say that there are certain minimum standards which the accused needs to equal before he can be tried without unfairness or injustice, but added that the accused “need not have the mental capacity to make an able defence”.
[27] [1980] HCA 18, (1980) 147 CLR 1.
[28] [1980] HCA 18 at [8], (1980) 147 CLR 1 at 8.
A reduction in a capacity relevant to whether a person is unfit to stand trial is not sufficient for a finding a person is unfit. There must be an absence of capacity to understand and follow the proceedings as required in Presser.
In R v Hayles[29] this Court cited with approval what was said by the Court of Appeal of New South Wales in R v Rivkin.[30]The Court of Appeal said:[31]
The central question which arises, in this respect, is whether a reduction in the capacity of an accused to meet the requirements in R v Presser, but which falls short of denying to that accused the capacity to understand and to follow the proceedings in each of the necessary aspects, is sufficient to constitute unfitness, and to justify appellate intervention, in accordance with the test previously mentioned.
In our opinion, that question should be answered in the negative. The test in R v Presser is directed to the minimum requirements for a fair trial. So long as the accused can understand and follow the proceedings in each of its facets, can give appropriate instructions, and can present a proper defence to the charge, he or she is to be regarded as fit to be tried. The fact that the accused may have done so in a better way, had suitable medical treatment or medication been provided, or had that accused possessed greater intelligence or acuity of mind, does not seem to us to be relevant to the question of fitness.
Any other approach might invite invidious comparisons between accused of different intellectual backgrounds or personalities. It could also invite a fruitless search for a hypothetical accused with the capacity, intellectual or otherwise, which might equip him or her with the ability to conduct a defence at a predetermined level of skill.
That is not the concern to which the test in R v Presser is addressed. Inevitably there will be accused who could have done better in a trial, had they possessed a more attractive personality, greater intelligence or education, improved communication skills, a deeper appreciation of the factual and legal issues, or even a better appreciation of the trial process, than those possessed or displayed at trial. It does not necessarily follow that they were unfit to be tried.
[Citations omitted.]
[29] [2018] SASCFC 58 at [29], (2018) 131 SASR 186 at 194-195.
[30] [2004] NSWCCA 7, (2004) 59 NSWLR 284.
[31] [2004] NSWCCA 7 at [297]-[300], (2004) 59 NSWLR 284 at 297.

In Hayles[32] I set out the principles relevant to the application of s 269H in the following terms:[33]
(i)the overarching concern of the common law and s 269H is to prescribe the minimum requirements for a fair trial where there is an issue as to whether the accused is unfit to stand trial by reason of some mental impairment. The purpose of s 269H is to ensure that a trial is not rendered unfair because of the inability of the accused to participate in the trial in an appropriate manner;
(ii)the test is to be applied in a reasonable and commonsense fashion;
(iii)the minimum requirements required for an accused person to be fit to stand trial may not be very difficult to meet;
(iv)in order to be fit to stand trial, an accused must be able to follow the course of the proceedings and the evidence so as to understand what is going on in a general sense, but it is not necessary that he has a complete understanding or that he is capable of following the complexities of legal argument or some difficult to understand aspect of the evidence;
(v)the fact that an accused suffers from a mental disorder or impairment which reduces his capacity to follow the evidence or the course of the proceedings does not render him unfit to stand trial. The test of unfitness requires that the accused is entirely unable to follow the evidence or the course of the proceedings;
(vi)in assessing whether an accused is unfit to stand trial, it is proper for the court to weigh the complexity of the charge faced by the accused and whether the accused is represented by counsel; and
(vii)whether the accused is unfit to stand trial, where his ability to receive information, process it and respond to it is impaired, depends on whether that impairment is such as to deprive the accused of the capacity to follow the evidence or the course of the proceedings in the manner described above.
[32] [2018] SASCFC 58.
[33] [2018] SASCFC 58 at [31].
Ultimately the test is whether the accused is so mentally impaired that he cannot obtain a fair trial. For that purpose, the accused’s mental processes must be so disordered and impaired that he or she is wholly unable to satisfy the test in s 269H.
The ability to give evidence is central to the right of an accused to a fair trial. It follows that an inability to give evidence will result in a person being unfit to stand trial.[34] While s 269H makes no express reference to the ability of a person to give evidence, that concept is enshrined in the requirements of the provision.
[34] Eastman v The Queen [2000] HCA 29 at [64], (2000) 203 CLR 1 at 22-23.
For that purpose, this application for permission to appeal is to be decided on the basis of whether the respondent proved that he is incapable of exercising his choice whether or not to give evidence, to understand the requirements of the oath and to give his version of the facts in response to questions.
Submissions of the parties
The applicant submits that irrespective of which limb of s 269H applies, the judge erred in three ways: first, by applying the wrong test; second, in finding the respondent is unable to give evidence; and third, in concluding that he is unfit to stand trial. The applicant does not seek to challenge the findings made by the judge concerning the evidence of the nature and extent of the respondent’s disabilities but challenges the conclusion of the judge in reliance upon that evidence. The applicant submits that evidence does not establish that the respondent is unfit to stand trial.
The respondent submits that there is no error in the approach taken by the judge in applying s 269H and that her conclusion that the respondent is unfit to stand trial is supported by the evidence and the judge’s findings of fact. The respondent submits that the judge’s conclusion was based on two findings: first, that the respondent is unable to decide rationally whether he should give evidence in his own defence; and, second, that he is incapable of giving evidence, in the sense of responding rationally to questions asked. In the alternative, the respondent submits that even if the judge applied the test incorrectly, the evidence and the facts as found by the judge nonetheless support the conclusion that the respondent is unfit to stand trial.
Consideration
The judge was not satisfied on the balance of probabilities that the respondent is unable to understand or to respond rationally to the charges or the allegations on which the charges are based.[35] On this basis the judge found the respondent did not fulfil the criteria in s 269H(a). Further, the judge, while acknowledging that the respondent is at a disadvantage when compared to others because of his various deficits, was not satisfied that he is unable to understand the nature of the proceedings or to follow the evidence or the course of the proceedings. On this basis the judge found the respondent did not fulfil the criteria in s 269H(c).
[35] [2018] SADC 55 at [642].
In considering whether the respondent is unable to exercise procedural rights, the judge made the following findings:[36]
Having regard to the accused’s presentation in Exhibits P6 and P7, I am satisfied that as at July 2015 the accused demonstrated an understanding as to various legal rights; including, the right to silence, the right to seek legal advice and the right to have someone present with him during a record of interview.
Although he expressed some initial confusion as to how it may be either possible to, or in his best interests to exercise such rights (for example, his comment to police that he could not afford a lawyer), I am satisfied that upon being carefully explained how those rights could be exercised and the benefits of exercising such rights, that the accused was able to then provide rational instructions as to whether and how to exercise such rights. I will discuss below whether he demonstrated an ability to exercise the right to silence at that time.
As to his current understanding as to procedural rights, I accept the evidence of Dr Fitzgerald, supported to an extent by that of Mr Balfour, that with education and advice the accused is able to understand procedural rights (for example, understanding basic legal concepts such as guilty and not guilty, understanding the roles played by persons in court, challenging jurors, the right to trial by jury or Judge alone, the right to give evidence.)
In this respect I accept Dr Fitzgerald’s evidence that the accused is able to understand simple interpretations and is able to make a decision if presented with information as to the consequences of alternative actions or scenarios. The accused’s mild executive dysfunction does not render him unable to do so, nor does the effect of his verbal comprehension difficulties.
The fact the accused may defer to counsel on the exercise of certain rights, due either to his naivety, unsophisticated nature or lack of intelligence does not mean he fulfils the criteria pursuant to this limb, provided he possesses the ability to understand those rights, expressed in simple terms, an understanding to then weigh the benefits or cons associated with those rights and the ability to exercise those rights.
There is no evidence that the accused lacks the ability to think independently.
[Emphasis in the original.]
[36] [2018] SADC 55 at [644]-[649].
On that basis the judge was not satisfied that the respondent is unable to give rational instructions as to the exercise of procedural rights. However, the judge ultimately found the respondent mentally unfit to stand trial on two grounds: first, that as a result of a combination of the respondent’s mild executive dysfunction and poor short-term memory, in the context of his low intelligence level and verbal comprehension difficulties, he is unable to exercise his right to give evidence; and second, as a result of his executive dysfunction, the respondent is unable to exercise his procedural right to silence, i.e. to decide whether or not to give evidence in his own defence.
The finding that the respondent is unable to give evidence relied upon the evidence of Mr Balfour, Dr Field and Dr Seidel that the respondent does not have the option of exercising his right to give evidence, and the evidence of Dr Fitzgerald that the respondent would struggle in cross-examination and likely become confused. The finding that the respondent is unable to decide whether to give evidence in his defence relied upon the evidence of Dr Seidel.
I commence by considering the issue of whether the respondent is unfit to stand trial on the basis that he is unable to exercise his right to give evidence.
The judge addressed this issue in the following terms:[37]
[37] [2018] SADC 55 at [691]-[703].
The experts all agreed the accused can understand the concept of telling the truth, he can answer simple questions framed in concrete terms as to whether and/or why he may have done something, he can seek clarification if he does not understand a question and can, if given the imprimatur to do so, request a break if fatigued.
However, in practice the giving of evidence involves much more than these abilities.
The accused faces 21 separate counts from thirteen different complainants.
If the accused gives evidence, he will be asked about matters spanning a period of over 50 years, involving multiple different locations and participants. He will be doing so in a courtroom environment, with some physical challenges posed by his hearing difficulties and diplopia. The environment will be significantly more challenging than that he encountered during the record of interview with police in July 2015, with practical challenges of the type which were identified by Dr Seidel during the course of his evidence. There will likely be chopping and changing from one topic to another, with no requirement for any chronological or topical consistency.
The intellectual challenges associated with giving evidence, particularly given the various stressors involved, are considerably greater than those faced by an accused simply listening to and endeavouring to understand the ‘substantial effect’ of evidence led against him.
For a witness’ response to a question to be accurate, they must both understand and accurately remember the entirety of the question asked. If there is even minor misunderstanding or misinterpretation of a question, the response given may be entirely inaccurate. Merely understanding the substance of a question, rather than its specifics or nuances, has the real possibility of impacting on the answer given.
The accused has demonstrated problems with the retrieval of short-term memories. When prompted he can recall matters with ‘some’ degree of accuracy, but according to Dr Fitzgerald, with prompting he is still only able to recall ‘not everything, but a little.’
It must be remembered that these observations were made by Dr Fitzgerald in her testing the accused on one of his ‘good days’, possibly reflecting the upper limits of his performance.
The accused has mild executive dysfunction, meaning he has impaired ability to undertake higher level thinking skills, such as thinking flexibly and inhibiting impulses.
As such, I consider that even if the accused is questioned using language and a style which is sensitive to his limitations, there is a real likelihood that, due to his mild executive dysfunction and short-term memory loss, his responses may not reflect what he intended and/or may not be accurate due to his inability to properly understand and/or recall the question in its totality.
The fact that there are so many factual matters to be covered by the accused’s evidence further increases the likelihood for the accused to misinterpret, misunderstand or mishear a question, leading to a real concern as to the reliability of any evidence he may give.
The accused’s borderline verbal comprehension skills and hearing difficulties add to the likelihood of his evidence being simply too unreliable to be able to be accepted.
While the Prosecution may be mindful of the accused’s limitations, this is an adversarial contest. There is a limit on the court’s ability to control the manner and type of questioning in a way that will enable it to fulfil its overriding obligation to ensure a fair trial.
[Footnotes omitted.]
As a result, the judge found that, by reason of a combination of the respondent’s mild executive dysfunction and poor short-term memory, in the context of his low intelligence level and verbal comprehension difficulties he is unable to give evidence in his own defence.[38]
[38] [2018] SADC 55 at [707].
The applicant submits that the judge applied the wrong test in determining whether the respondent is unfit to give evidence. The applicant contends that the judge failed to recognise what the Court of Appeal in Rivkin described as the central question, namely, whether the respondent lacks the capacity to give evidence in his own defence at all as opposed to whether, by reason of his particular deficits, his capacity to do so is merely reduced.[39] The respondent rejects this submission.
[39] [2004] NSWCCA 7 at [297]-[300], (2004) 59 NSWLR 284 at 297.
The judge set out at some length her understanding of the principles relevant to determining fitness to stand trial.[40] In the course of that exegesis, the judge cited the judgment at first instance in R v Hayles.[41] Unsurprisingly, the judge did not refer to the Full Court’s judgment as it had not been delivered at that time. The Full Court upheld the appeal in Hayles from an order that the respondent was mentally unfit to stand trial. The reasons of the Full Court in Hayles emphasise that for a finding of unfitness to be made, the Court must be satisfied that the accused’s mental processes are so disordered and impaired that he or she is wholly unable to satisfy the test in s 269H. The judge in this matter did not address the statutory test in those terms.
[40] [2018] SADC 55 at [12]-[40].
[41] [2017] SASC 192.
The respondent concedes that the judge in her reasons does not frame the statutory test as being one of a total lack of capacity in the sense discussed by the Court of Appeal in Rivkin and by the Full Court in Hayles. Nonetheless, the respondent submits that, in concluding that the respondent is unable to exercise his procedural rights, it is apparent that what the judge considered was whether she was satisfied that he wholly lacked the ability to do so. I do not accept that submission. That is not the way the judge framed the test. The judge made no reference to Rivkin. In these circumstances, I consider the judge erred in applying the wrong test in determining whether the respondent is unfit to give evidence. However, that is not necessarily dispositive of the appeal. The respondent submits that, in any event, the evidence establishes that the respondent wholly lacks the ability to give evidence. I turn to consider that issue.
The applicant submits that this Court can rely on the judge’s findings, based on the expert evidence, as to the nature and extent of the respondent’s mental impairment, but not the conclusion that by reason of his impairment he is unable to give evidence.
In his report, Mr Balfour said:[42]
... I believe that [the respondent] would cope poorly if he were going to be intensively cross-examined for an extended period because his poor short-term verbal memory and language specific learning disorder would result in him feeling overwhelmed, and unable to respond rationally. He would lose track of the flow of questions.
[42] Exhibit D2, p 24.
In his evidence, Mr Balfour elaborated upon this opinion. He said that the respondent would be cognitively challenged by the demands of cross-examination and would become acutely distressed.[43] He said:[44]
... There is [sic] issues about his hearing impairment. He has a very unpleasant condition of seeing double, which must be very disorienting, plus he has the problems with the language and the poor verbal memory, and it depends on the style of questioning, whoever is cross-examining him, if it is using legalese, complex and that is not sensitive to his education and intellectual and cognitive limitation, he just wouldn’t be able to function but even with support I think he might struggle. If it is a very simple “yes” and “no”, very simple maybe and there is also the stress of the situation. We all know that cross-examination is complicated and the Crown cannot be forced to “dumb it down” or use language appropriate for his level of education or his cognitive impairment.
[43] Transcript p 231.
[44] Transcript p 229.
He continued saying:[45]
... if he does give evidence, it would be very difficult and I don’t think he is up to it.
[45] Transcript p 231.
Mr Balfour further said:[46]
I’m assuming if he is being cross-examined it is going to be about a massive volume of issues, so his capacity to keep on top of that is going to be severely impaired and he will become befuddled, confused and he will struggle. ... He may just shut down or withdraw. ...
[46] Transcript p 230.
Later, he said:[47]
... if you had a person of normal intelligence with no cognitive impairment, in theory they could give evidence to deal with each of those 12 victims in a trial and they could survive it and it would be a very harrowing and stressful experience but a man with cognitive impairment and other vulnerabilities, I think by default he would have to not do it.
[47] Transcript p 269-270.
And he further said:[48]
Most cross-examinations are intense because they involve a barrage of questions, the person having to understand the question, make sense of it, relate to whatever information is in their head. So it’s a very intense process ... just the volume of questions that are asked, and plus there is all the complex strategies used by cross-examining barristers in questioning someone. It can bamboozle them. So for example, if he was asked a compound question with several questions embedded in the one question and he replied “Yes”, it could lead to a mistaken impression that he understood the question or it is not clear which of the two or three embedded questions he is replying to.
[48] Transcript p 768.
Mr Balfour conceded that, while it would be helpful if the language used in cross‑examination was concrete and simple and there was time to verify the respondent’s understanding of what was being asked, it might be that he could not cope with being cross-examined for a day or two days.
Dr Field gave evidence that the respondent would be very easily overwhelmed by large amounts of information presented in short order. He considered he would be less able to manage listening to, thinking about and recalling information afterwards and responding to it.[49] Dr Field thought that the police interviews in 2015 demonstrated periods when the respondent became overwhelmed by the process.
[49] Transcript p 559.
I have earlier referred to Dr Seidel’s evidence in which he described the respondent’s unguarded lack of defensiveness. Dr Seidel considered the respondent was unfit to stand trial on the basis of his inability to be self-protective. By this he meant there was a significant risk that, because of the impact on his level of executive functioning, resulting from his organic brain disease, the respondent may say things that were not to his advantage.
Dr Fitzgerald expressed the opinion that the respondent would struggle on the witness stand in an adversarial questioning type of situation. She thought he probably would become confused.[50]
[50] Transcript p 84.
This evidence appears to be the foundation for the judge’s conclusion that there is a real concern as to the reliability of the evidence the respondent might give.[51] This was the substantial basis for the judge’s conclusion that the respondent’s evidence would not be able to be accepted.[52]
[51] [2018] SADC 55 at [701].
[52] [2018] SADC 55 at [702].

This evidence must be considered in the context of the evidence of Mr Balfour in cross-examination that, during his assessments of the respondent, he was not overwhelmed with fatigue or unable to continue with the interviews or testing;[53] he could understand questions put in simple language about whether he had done the things alleged by the complainants;[54] if questions were put in concrete terms and sensitive to his needs, the respondent could answer questions as to why he may have done certain things;[55] if clearly instructed to the respondent could ask if he did not understand a question, or needed a break;[56] the respondent could answer a question as to whether or not he was telling the truth;[57] he could say if he did not remember something;[58] and he could understand a question about why his evidence on a topic may be different from something he had said on another occasion.[59]
[53] Transcript p 767.
[54] Transcript p 769.
[55] Transcript p 769.
[56] Transcript p 770.
[57] Transcript p 770.
[58] Transcript p 773.
[59] Transcript p 770.
This evidence must also be considered in the context of the judge’s findings that the respondent can understand the concept of telling the truth, answer simple questions framed in concrete terms, seek clarification if he does not understand a question and request a break if fatigued.[60]
[60] [2018] SADC 55 at [691].
In my view, the basis of the judge’s conclusion as to the reliability of any evidence the respondent might give is flawed. The judge’s reasons do not descend into any analysis of the nature or the extent of the likelihood that the respondent’s evidence would be too unreliable to be accepted. There is no consideration in the evidence given by the experts of what aspects of the evidence the respondent might give that might be inaccurate so as to render it unreliable. While the respondent is charged with 21 counts of sexual offending against children, the nature of those allegations is relatively straightforward. The allegations themselves are not complex. He can be questioned in simple and concrete terms about those allegations. His defence to these allegations can only be that they did not occur, that he did not commit them, or that he cannot recall them occurring. Moreover, he is afforded the protection of s 25 of the Evidence Act 1929 (SA). The Court is empowered to disallow an inappropriate question. In determining whether a question is inappropriate, the Court may take into account the age, educational level and any cognitive impairment of the witness. The Court may have regard to the context that the respondent is on trial for this offending. In addition, in applying s 269H the Court considers whether the respondent has proved that he is unfit to stand trial on the understanding he is represented by counsel. This undermines the premise of much of the expert evidence concerning the respondent’s difficulties in coping with cross-examination.
Further, the judge’s concerns about the respondent’s unguarded lack of defensiveness, founded in the evidence of Dr Seidel, do not address the fundamental issue of whether that factor exposes the respondent to the risk of giving inaccurate evidence.
Whether an accused is fit to stand trial is not a demanding test.[61]
[61] Eastman v The Queen [2000] HCA 29 at [298], (2000) 203 CLR 1 at 99.
The findings of the judge amount to no more than a conclusion that there might be a risk of unreliability in the evidence given by the respondent. The authorities do not support the proposition that the mere possibility some evidence might be unreliable is sufficient to prove that a person is wholly unable to give evidence. In any event, the risk that some evidence the respondent might give is unreliable cannot found the conclusion that he is unfit to give evidence. To be fit to stand trial a person does not have to have an ability to “make an able defence”.[62] All that is required is that he can make a proper defence.[63] It cannot be that every aspect of an accused’s evidence must be reliable. Even if this was the position, in order to determine the question of fitness the Court must know whether the risk of unreliability relates to aspects of the respondent’s evidence which are crucial to his defence or peripheral to it. The evidence heard by the judge did not permit a finding to be made in this regard. For example, the experts did not identify any particular inability on the part of the respondent to address the specifics of the allegations made against him.
[62] R v Presser [1958] VR 45 at 48, cited with approval in Ngatayi v The Queen [1980] HCA 18 at [9], (1980) 147 CLR 1 at 8.
[63] R v Tier [2001] NSWCCA 53 at [1], [54]-[55], (2001) 121 A Crim R 509 at 510-511.
The respondent was interviewed by the police on two occasions in 2015 and answered questions.[64] There is nothing in those interviews that suggests the respondent did not understand questions put to him, let alone that any misunderstanding then resulted in an unreliable response. The judge found that there had been little deterioration in the respondent’s cognitive ability in the subsequent three years.[65] The judge found that the respondent is not in a significantly worse position than most other 81-year-olds being asked to recall events from many years ago.[66] The judge found that with appropriate prompting the respondent has the ability to retrieve long-term memories that are emotionally relevant and meaningful to him, although as with any person being asked to recall memories from many years ago, he may struggle to remember specific details or circumstances.[67] The judge found that tests revealed the respondent performed in the low/average to average range in measuring working memory. That is a person’s ability to hold and manipulate information in their mind. This is important for keeping on track in conversations.[68] The judge found that the respondent retains sufficient ability to encode, store and retrieve structured and emotionally relevant information in the short-term, and to hold and manipulate that information in his mind.[69]
[64] Exhibits P6, P7 and P8.
[65] [2018] SADC 55 at [557].
[66] [2018] SADC 55 at [560].
[67] [2018] SADC 55 at [561].
[68] [2015] SADC 55 at [564].
[69] [2015] SADC 55 at [730].
The fact of an impaired memory is not necessarily sufficient to prove unfitness to stand trial. In R v Mailes[70] Wood CJ at CL, with whom Spigelman CJ and Greg James J agreed, said:[71]
In R v Drummond (Court of Criminal Appeal, 27 May 1994, unreported), the issue arose in a case where the accused claimed that he had amnesia and could not recall committing the offence. It was held applying R v Podola and Russell v His Majesty’s Advocate, and following R v Dennison (Court of Criminal Appeal, 3 March 1988, unreported), that a condition of amnesia resulting from brain damage of a diffuse kind, does not operate to bar the trial of an accused, and that as a consequence the direction by the trial Judge to the jury to find the accused fit was correct. Gleeson CJ observed, (at 9–10):
“As had been pointed out by Grove J, the decision in R v Dennison is supported by a line of English and Scottish authorities to the effect that amnesia does not constitute unfitness to plead to a criminal charge. The common sense behind this conclusion is, I consider, fairly apparent. There may be any number of reasons why a person accused of a crime may be unable to recollect the events of the occasion on which the alleged crime occurred. Amnesia may be one such reason; age, other forms of infirmity, or simply distance in time between the alleged events and the trial, might explain the inability to recollect. The fact that an accused person cannot, for one reason or another, recollect the events of the occasion of the alleged crime does not mean that the accused is, within the words of R v Presser ¼ , incapable of letting Counsel know what his version of the facts is. The accused person who says to his counsel ‘I can’t remember what happened on that day’ is not thereby unfit to plead.”
[70] [2001] NSWCCA 155, (2001) 53 NSWLR 251.
[71] [2001] NSWCCA 155 at [172], (2001) 53 NSWLR 251 at 285.
There was no evidence before the judge that the respondent has not been able to give instructions. There was no evidence that the respondent might not recall questions in Court or that he has difficulty in recalling a question immediately asked of him. On the contrary, the evidence was the respondent could answer questions asked of him in cross-examination if framed in terms which are sensitive to his limitations. The evidence is he is capable of asking for questions to be repeated if he does not understand them. In the neuropsychological assessments he understood questions and followed and recalled instructions as to the testing adequately.[72] The judge’s reliance upon the respondent’s difficulties with “short‑term memory” are not based in any evidence that he cannot understand a simple concrete question asked of him in cross-examination and respond to it rationally. Whether he can recall the answer he gave to a previous question some time later does not establish that he is incapable of giving evidence. For these reasons the evidence does not prove that the respondent is incapable of giving evidence and is therefore unfit to stand trial.
[72] Transcript 30 Dr Fitzgerald; T 735 Dr Balfour and T 886 Dr Field.
The judge’s finding pursuant to s 269H that the respondent is mentally unfit to stand trial cannot be supported on that basis.
That leaves the issue of whether the respondent is unfit to stand trial on the basis that he is unable to decide whether or not to give evidence in his own defence.
The procedural right to decide whether to give evidence is antecedent to the question of whether an accused is able to give evidence. However, if an accused person is unable to give evidence, it is difficult to see how the accused can meaningfully exercise the procedural right to choose whether or not to give evidence.
The judge’s finding that the respondent is unable to decide whether to give evidence is inconsistent with her conclusion that she was not satisfied the respondent had proved he is unable to give rational instructions as to the exercise of procedural rights. That finding is contrary to the judge’s reasons set out above, where she accepted the evidence of Dr Fitzgerald, supported to an extent by that of Mr Balfour, that with education and advice the respondent is able to understand his procedural rights, including, for example, the right to give evidence.[73] Nowhere does the judge seek to reconcile these inconsistent findings. Importantly, the reliance on the evidence of Dr Seidel does not justify the conclusion that the respondent is unable to decide whether or not he should give evidence in his own defence. The high point of Dr Seidel’s evidence in this regard is found in the following passage:[74]
[73] My reasons at [37].
[74] Transcript pp 633.12-634.24.
Q.And what about as far as even if we were to do our best shot and try and use the information that we had in the best way we could for [the respondent’s] benefit, do you believe that he would be able to respond rationally to any advice that he was given, for example, I mean, that's that next step in the process if you like, before anything happens in court.
A.Okay; again, the impression from my interview and from the video that I watched this morning was that whilst he can take advice it's difficult for him to act on it because his self-restraint is not there. Again, if that was just a personality trait of his the court would then just have to live with that but we do have evidence that there is an organic brain basis which explains it.
Q.And so, for example, if one's determining to give him some advice about whether or not he should give evidence, both Dr Fitzgerald and I think Mr Balfour have given the view that he would struggle with the adversarial nature or, in effect, being questioned -
A.Yes.
Q.- in cross-examination, do you share that concern.
A.Yes.
Q.So the process of undergoing cross-examination would be difficult or impossible, or how would you measure it, or how would you describe it from your perspective. When one is assuming that it's all 12 of them, in effect he is being questioned about all 12 allegations and his versions of everything at once.
A.Certainly, I think there is a risk of him saying things he doesn't intend to say, that's my best way of putting it; it may in fact be too easy.
Q.And what about his ability to make or capacity to make that decision as to whether or not to give evidence, do you think that that's a procedural right -
A.I think he would ask for your advice, from what I've seen I can't imagine him going against advice, but I don't know that he'd really be making a decision except to put his trust in the barrister.
Q.So if he was unable to withstand the rigors of cross-examination of 12 complainants and all of the whole case, do you think that puts him into a position where he is simply not able to make a rational election or a rational choice.
A.Yes.
Q.And do you see a disadvantage then in that to him.
A.Again, certainly he's at a disadvantage whatever way we look at it but the question is, is that disadvantage serious enough to make him unfit to stand trial and again I go back to my fear of his unguarded lack of defensiveness which may or may not be accepted by the court.
Properly understood, Dr Seidel’s evidence is not concerned with the respondent’s ability to decide whether it is in his best interests that he give evidence. Dr Seidel expressed the opinion that the respondent was unfit to stand trial because of his inability to be self-protective. He considered this was a result of the respondent’s organic brain disease. This evidence was directed to the respondent’s difficulties in giving evidence, rather than the issue of whether he is able to decide whether to give evidence.[75] Dr Seidel expressed the concern that, by reason of his organic brain disease, the respondent experienced an “unguarded lack of defensiveness” or a lack of “self-restraint”. Dr Seidel seemed to think that this would present a problem for the respondent if he gave evidence. The problem being that he might say things contrary to his self-interest. Dr Seidel’s concern in this regard does not relate to the ability of the respondent to decide, with the assistance of counsel, whether he should or should not give evidence in his own defence. In any event, the judge correctly concluded that the lack of ability to be self-protective when giving evidence did not necessarily render the respondent unfit to stand trial.[76] For these reasons, the judge’s finding that the respondent cannot exercise his right to decide whether to give evidence in his own defence, based on the evidence of Dr Seidel, cannot stand.
[75] Transcript p 614.32-36.
[76] [2018] SADC 55 at [680].
Accordingly, the judge’s finding pursuant to s 269H that the respondent is mentally unfit to stand trial cannot be supported on that basis.
The judge’s finding that the respondent is mentally unfit to stand trial is in error. The evidence does not establish that he is unfit to stand trial.
Conclusion
I would grant permission to appeal, allow the appeal and remit the matter to a Judge of the District Court for the trial of the respondent.
LOVELL J: The respondent is charged with 21 counts of sexual offending against 13 complainants for the period between 1962 and 2013. The respondent claimed that he was mentally unfit to stand trial. After hearing evidence from 4 expert witnesses the primary Judge found that, pursuant to section 269H(b) of the Criminal Law Consolidation Act 1935 (SA), the respondent was mentally unfit to stand trial. The primary Judge found that the respondent was unfit to stand trial on 2 bases, namely:
1.The respondent was unable to exercise his procedural right to give evidence; and
2.The respondent was unable to exercise his procedural right to silence.
The applicant has sought permission to appeal against those findings. I have had the advantage of reading the draft judgment of Stanley J. I agree with Stanley J that permission should be granted, the appeal allowed and the matter remitted back to the primary Judge. I also agree generally with the remarks of Stanley J relating to the first finding of the primary Judge. While I agree with Stanley J that the primary Judge was in error in relation to the second finding, I have come to that conclusion on a different basis. My reasons follow.
Background
I gratefully adopt Stanley J’s summary of the evidence.
Section 269H relevantly states:
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.
S 269H does not refer to any specific medical or psychological condition but requires the court to assess whether the person’s mental processes are so disordered or impaired such that he or she is unfit to stand trial when assessed against the criteria set out in the section. An assessment of whether a person is unfit to stand trial cannot be determined simply by reference to a diagnosis. That is the court must assess the “whole” person and how his or her mental processes operate against the criteria in the Act.
The primary Judge, correctly, had regard to factors other than the medical and psychological evaluations of and opinions as to the respondent’s mental processes when making her findings. The primary Judge analysed how the accused’s specific medical conditions impacted his daily life and how they may therefore operate when he was to be tried.
The primary Judge found that the respondent was suffering a mild neurocognitive disorder, with resulting mild impairment in executive functioning, some short-term memory difficulties and some patchy but not significant long-term memory loss.[77] This finding was not challenged on appeal.
[77] Judgment at [549].
The respondent bore the onus of proof. He had to establish that his mental processes were so disordered and impaired that he is wholly unable to satisfy the test in s 269H. As Stanley J has explained the test is ultimately whether the accused is so mentally impaired that he or she cannot obtain a fair trial.
The right to give evidence
I agree with the reasons of Stanley J that the findings of the primary Judge on this issue amount to no more than a conclusion that there might be a risk of unreliability in the evidence given by the respondent. The primary judge did not have the benefit of the reasons of this court in R v Hayles when she came to consider the matter.[78] The evidence here did not prove that the respondent was entirely, as opposed to partially, incapable of giving evidence and was therefore unfit to stand trial. The evidence did not establish on balance that he would not receive a fair trial.
[78] [2018] SASCFC 58.
The right to remain silent
On the question of the primary Judge’s second basis for finding the respondent unfit to stand trial, namely his inability to exercise his right to remain silent, the primary Judge made the following findings:
…I am satisfied that as at July 2015 the accused demonstrated an understanding as to various legal rights; including, the right to silence, the right to seek legal advice and the right to have someone present with him during a record of interview.
Although he expressed some initial confusion as to how it may be either possible to, or in his best interest to exercise such rights (for example, his comment to police that he could not afford a lawyer), I am satisfied that upon having carefully explained how those rights could be exercised in the benefits of exercising such rights, that the accused was able to then provide rational instructions as to whether and how to exercise such rights. I will discuss below whether he demonstrated an ability to exercise the right to silence at that time.
As to his current understanding as to his procedural rights, I accept the evidence of Dr Fitzgerald, supported to an extent by that of Mr Balfour, that with education and advice the respondent is able to understand procedural rights (for example, understanding basic legal concepts such as guilty and not guilty understanding the roles played by persons in court, challenging jurors, the right to trial by jury or judge alone and the right to give evidence).[79]
[79] Judgment at [644]-[646].

The primary Judge found that the respondent understood his right to give evidence and his right to silence. Having made those findings, the primary Judge considered the question of whether he had the capacity to exercise those rights.
The primary Judge proceeded to analyse the evidence of the expert witnesses. She acknowledged that the fact that an accused may lack the ability to be self-protective when giving evidence does not necessarily render him unfit to stand trial.[80]
[80] Judgment at [680].
The primary Judge referred to the evidence of Dr Seidel. She stated:
Importantly he said, of the right to silence:
But I think that it would be that he understands the instruction that he is not obliged to answer questions, but is not able to put that into practice because he showed me the ability to say things he didn’t intend to say.
In re-examination, Dr Seidel stated that he considered it more likely than not that organic brain disease was the basis for this, rather than personality issues.
The fact the accused engaged in a conversation with police during the record of interview in 2015, wherein he made comments in response to the allegations, despite evidently being aware and conscious of the fact that he had been advised not to say anything to police, is another example of this.
The primary Judge then considered whether the respondent could exercise his right to give evidence. She concluded that he was unable to exercise his right to give evidence. Having made that finding she then also concluded:
In addition, I accept the evidence of Dr Seidel that the accused is unable to exercise his right to silence as a consequence of his executive dysfunction.[81]
[81] R v W, R [2018] SADC 55 at [708].
The primary Judge’s analysis in relation to his inability to exercise the right to silence centred on her consideration of the evidence of Dr Seidel and also the respondent’s conduct during his record of interview with police. I conclude that the primary Judge found that the respondent understood his right to silence but that the evidence of Dr Seidel, which she accepted, demonstrated that he was unable to exercise that right. Her discussion of this right related, correctly, to the matters involving the exercise of the right before trial.
I do not have to consider whether the primary Judge was correct in that finding. In my view, the primary Judge erred in considering that the right to remain silent was a procedural right to which s 269H(b) applied. Whether the right to remain silent is a procedural or substantive right was not argued on appeal. I do not have to decide that question. Assuming it is a procedural right, it is not a procedural right to which s 269H(b) applies.
The context and terms of s 269H demonstrate that the court is to consider whether an accused is unfit to stand trial. At trial, there is no right to silence. An accused, of course, does not have to give evidence, but that is a different right. If an accused chooses to give evidence he or she is required to answer all relevant questions (subject to the privilege against self-incrimination in relation to other offending – again, this is a different right).
If the accused made admissions, for example, during the course of a record of interview, and the evidence was that he did not understand or could not exercise his right to silence, a trial judge has a discretion to exclude the admissions. Assuming for the moment that a judge excluded any admissions made on this basis, it is hard to understand how an accused would then be unfit to stand trial. Another example would be if the police, for whatever reason, did not interview an accused. His inability to exercise his right to remain silent simply has no relevance at trial.
The primary Judge was in error in concluding that the right to silence was a procedural right to which s 269H applies.
I agree with the orders proposed by Stanley J for the disposition of the appeal.