R v W, R

Case [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

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R v W, R [2019] SASCFC 33
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[2019] SASCFC 33
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CaseChat Overview and Summary

This case concerned an appeal against a primary judge's finding that the respondent was mentally unfit to stand trial on charges of sexual offending. The applicant sought permission to appeal these findings. The appeal judges, Blue, Stanley, and Lovell JJ, agreed that permission to appeal should be granted, the appeal allowed, and the matter remitted.

The central legal issue was whether the respondent's mental processes were so disordered or impaired that he was unable to understand or respond rationally to the charges, unable to exercise procedural rights, or unable to understand the nature or course of the proceedings, as stipulated by section 269H of the Criminal Law Consolidation Act 1935 (SA). The primary judge had made two specific findings that led to the conclusion of unfitness: first, that the respondent was unable to exercise his procedural right to give evidence, and second, that he was unable to exercise his procedural right to silence.

The appellate court found that the primary judge erred in her findings. While acknowledging the respondent suffered from a mild neurocognitive disorder, the court emphasised that unfitness to stand trial is not determined by diagnosis alone but by an assessment of the whole person against the statutory criteria. The court agreed with the primary judge's initial assessment that the respondent did not meet the criteria under section 269H(a) or (c). Regarding the respondent's ability to exercise procedural rights, the court found that the evidence did not establish that he was entirely incapable of giving evidence or that he could not exercise his right to silence. The primary judge's findings on these points were considered to amount to no more than a risk of unreliability in the respondent's evidence, which did not satisfy the threshold for unfitness to stand trial, as the evidence did not establish on balance that he would not receive a fair trial.

Consequently, the court granted permission to appeal, allowed the appeal, and remitted the matter to a judge of the District Court for trial.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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; and2.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.

Ratio Decidendi

Legal Principle Established

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].