R v Wahlstedt

R v JOHN EDWARD WAHLSTEDT
[2003] SADC 172
Judge Rice
Criminal
Introduction

In this matter I have undertaken an investigation, pursuant to Division 3 of Part 8A of the Criminal Law Consolidation Act, 1935 (CLCA), to ascertain whether the accused is unfit to stand trial. I decided that the accused’s mental fitness to stand trial was to be considered first (s.269M CLCA). I accept that Part 8A provides a code for dealing with issues of mental fitness to stand trial and mental competence to commit an offence: Question of Law Reserved (No. 1 of 1997) (1997) 70 SASR 251 at 252.
There is a presumption in favour of the accused’s fitness to stand trial unless it is established by the accused, on the balance of probabilities, that he is mentally unfit to stand trial (ss.269I, 269MA(3) CLCA).
Only a little needs to be said about the charges and alleged facts. The accused is charged on an Information dated 6th March, 2000 with three counts of indecent assault (s.56 CLCA) and five counts of unlawful sexual intercourse (s.49(3) CLCA). He was committed for trial on 2nd February, 2000.
The charges relate to events that are alleged to have occurred between about the beginning of 1983 and November, 1988. The complainant is now aged 31 years. At the times to which the charges relate, she was aged between about 10 to 15 years. Put very generally, it is alleged by the complainant that she was sexually abused by her mother’s former de facto partner. The charges are said to represent a course of conduct by the accused towards the complainant. Apart from that bare summary, I have not had regard to the alleged facts of the case. Whatever the accused may have said to the police would presumably be relevant at the trial, but the investigation that I have undertaken must relate to the accused’s fitness to stand trial at the time of trial.
It is only stating the obvious to say that these alleged events occurred a long time ago. It would appear that the allegations first arose in early 1999. It is well-known to the law that allegations of that age are difficult to prove. It is equally well-known that it is difficult to mount a defence to such charges when they arise over a decade after the events are alleged to have happened and are made without warning. Often no more may be possible than a blanket denial that any such events occurred. The ability of a normal person to recollect specific occasions that long ago, even if they occurred, is very difficult. Rarely is an alibi able to be put forward and it would only be in an extraordinary case that forensic evidence would be available to anyone. There are a range of problems when allegations relate to a time far removed from the present, not least of which in the present case is the accused’s physical and mental condition.
Legislation and its interpretation
It is convenient at this stage to reproduce s.269H CLCA:-
“Mental unfitness to stand trial
269H.    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.”
Any of those three criteria is sufficient. In R v Sexton (2000) 77 SASR 405, Gray J, with whom the other members of the Court agreed, said this (at 413-4):-
“It is to be observed that this section makes reference to mental unfitness, in contrast to mental illness. Mental unfitness is identified as a disorder or impairment to a person’s mental process so that the person is, in general terms, unable to understand the trial process and their part in that process.”
By way of contrast “ ‘mental illness’ means a pathological infirmity of the mind (including a temporary one of short duration)” (s.269A).
Gray J went on to say (at 414):-
“A lack of understanding can result from a disordered or impaired mental process. It can arise from many causes other than mental illness. A mental process can be disordered or impaired without there being an underlying illness. This is the rationale of the common law rule, that lack of comprehension, regardless of cause is the relevant criterion to determine unfitness for trial. Section 269H encapsulates the same criterion as the common law in regard to the determination of unfitness for trial.”
And (at 414):-
“Nothing in s 269H or Pt 8A suggests that there should be any departure from the recognition of an accused’s right to a determination that he or she is unfit to stand trial, as provided for, and protected by, the common law.”
Finally (at 416):-
“Unfitness to be tried at common law is not limited to cases of mental illness. There are broader considerations, including one’s inability to communicate and participate in the trial process. An inability to communicate or comprehend may be based upon physical disabilities alone, such as hearing and speech impediments. The common law does not require the presence of any psychological or intellectual impairment.
The common law test for fitness to stand trial or, as it is sometimes put, fitness to plead, is to be found in the judgment of Smith J in R v Presser [1958] VR 45 at 48:-
“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 proceedings, 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.”
The majority of the High Court approved that test in Kesavarajah v R (1994) 181 CLR 230 (at 245):-
“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 [1958] V.R., at p. 48. Those standards, which are based on the well‑known explanation given by Alderson B. to the jury in R. v. Pritchard (1836) 7 Car. & P., at p. 304 [173 E.R., at p. 135], 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.”
Also in Kesavarajah (supra) (at 244-5), the majority said: “The test looks to the capacity of the accused to understand the proceedings....it does not mean that the accused is required to have sufficient capacity to make an able defence.” (See also Ngatayi v R (1980) 147 CLR 1 at 8-9).
“Make a defence or answer the charge”
A particular question has arisen in this case as to the meaning of the last of Smith J’s minimum standards, namely, the meaning of “....to make a defence or answer the charge.”
The prosecution put its submission in this way:-
“The prosecution contends, therefore, that the test does not demand that an accused be able to get into the witness box and orally make his defence. It is sufficient that the accused be able to put his defence in terms of the defence hypothesis being put to prosecution witnesses in the course of the defence testing the prosecution case.”
Further, the prosecution says that there being no obligation on an accused person to give evidence on oath, the test should not embrace a requirement that the accused have the ability to give evidence on oath should he or she so elect. Historically, there is good reason for so submitting. However, in my view, there are dicta in the cases to which I will refer that suggest that fitness to stand trial includes an ability to give evidence on oath should that election be made.
In Ngatayi (supra) the trial judge refused to empanel a jury to determine whether the accused, a full-blood Aboriginal, was incapable of understanding the proceedings so as to be able to make a proper defence (s.631 Criminal Code (WA)). The trial proceeded and the accused was convicted. In granting special leave but dismissing the appeal, the majority of the High Court (Gibbs, Mason and Wilson JJ) said this (at 10):-
“In the present case there is no reason to doubt that the applicant understood the nature of the proceedings and the nature of the evidence. He was capable of giving evidence as to the circumstances out of which the charge arose, including evidence that he was drunk when he stabbed White. His case is that he did not understand the relevant legal concepts. However, his counsel explained to the jury the relevance of intoxication to the question of intent, and the learned trial judge gave a direction on this issue. The fact that the applicant could not understand the law under which he was tried did not mean that he was not able to make a proper defence with the assistance of counsel.”
Although that was an ex post facto consideration of the matter, the court had regard to the fact that he was capable of giving evidence as evidenced by the fact he did give evidence. A similar approach was taken by the Court of Criminal Appeal of this State in R v Leach [2002] SASC 321 at para.12. By implication, the ability to give evidence is relevant to the earlier investigation of unfitness to stand trial.
The cases of lack of memory for whatever reason are of no direct assistance. The mere fact of a lack of memory by illness, accident or alcohol has never been sufficient, by itself, to render a person unfit to stand trial (R v Podola [1960] 1QB 325 approving Russell v HM Advocate [1946] JC 37, both of which were approved by Mullighan J in R v Richards (1994) 64 SASR 42 at 47-49).
Further, in my view, such an approach accords with common sense. The trial process, amongst other things, comprehends all facets that involve the accused, from the ability to understand the charge and plea right through to the actual making of the defence. The trial process does not finish at the close of the case for the prosecution. To make a defence or answer the charge obviously includes the ability to provide instructions before the trial and as it proceeds but also, apart from electing to give evidence, the ability to give instructions about the calling of any witnesses. The possibility that an accused person may elect not to give evidence is not to the point. He or she must have the ability to do so when the time comes.
It is also important to understand what is not embraced by the concept of making a defence or answer to the charge. As already touched upon, it does not include making an “able” defence. One way or another language and communication difficulties can be overcome. It is not necessary that the accused understand the legal concepts other than those necessary for the other requirements of Presser (supra).
Having said those things, it would have to be a very unusual case where an accused fulfils the criteria of Presser (supra), but then would not have the ability to give evidence upon such an election. However, such a situation is nonetheless possible.
One final matter. The ability to give evidence on oath may differ depending upon the nature of the case. An accused who is not unfit for the purposes of a trial because there are a limited range of facts and issues, may well be unfit for the purposes of a long, complicated fraud trial. Much will depend upon the individual circumstances.
Physical/mental condition of this accused
The accused is presently aged 54 years. He has been in ill health for a number of years with a variety of conditions, most of which are operative at any one time. He takes a significant amount of medication, most to deal with the primary problems and others to counteract some side-effects.
The medical problems and medications are referred to below. As I have already touched upon, the relevant time for this unfitness to be assessed is at the time of trial. It is also necessary for me to assess unfitness having regard to the anticipated duration of the trial. On the assumption that the court sits only in the morning, the trial itself has been allocated for fifteen days. In my view such an estimate is too long. In my view a trial of this type involving the number of proposed witnesses, should take no more than five full sitting days. Even on the assumption we sit only in the mornings, ten sitting days should be adequate. It is upon that basis that I will proceed.
There were a number of experts called as part of the investigation. Mr Birchall, for the accused, called Dr K Boundy, Senior Consultant Neurologist. Dr Boundy has treated the accused since January, 2001. She gave evidence about the history of his medical problems before her involvement and then described his present problems, medication and factors relevant to his fitness to stand trial. I also received a number of reports from her.
Historically he has had these medical problems. In about 1993-94, the accused suffered a back injury while lifting at work. Work related back pain and sciatica followed. At about the same time he may have suffered a “small stroke” but that may, in fact, have been no more than an episode of dizziness. In 1995 he had pancreatitis and in 1998 he had surgery for an hernia. He initially suffered from non-insulin dependent diabetes, but he is now on regular doses of insulin. He is on fairly high doses of prescribed analgesics for back pain, he has elevated cholesterol, recurrent headache, stiffness of the neck and shoulder, and depression.
Some time after Dr Boundy saw him in early 2000, she diagnosed him as probably suffering from a complex partial seizure condition where he would lose awareness but not necessarily lose consciousness. He also complained of a loss of memory and on‑going problems with his left leg. Concerning the complex partial seizures, when suffering from one, he may have a glazed look, not talking in or responding to conversation, and afterwards being tired with the need to go to bed. More recently he has suffered from uncontrolled episodes of seizure, the medication for it also assisting with chronic pain. The accused suffers from this partial form of epilepsy, either several times per month or perhaps in a group in one day. In either situation he is then out of action for a whole day.
Since about 2000 he has been complaining of a memory disorder. Past and recent special tests confirmed short-term memory problems and quite a significant frontal executive dysfunction, that is, relating to decision-making and insight. There is some abnormality in the left temporal lobe which adversely affects his memory and is compounded by some of the medication he takes because of its sedative effect. He also has liver problems.
The medication he is on at about this time is referred to in Dr Boundy’s evidence (TP16-18), some of which reduce his level of concentration and alertness and have a sedative effect. She noted some problems with immediate recall when interviewing him, slowness in responding to questions and drowsiness. Dr Boundy was of the view that the accused would have considerable difficulty following the proceedings because he would have trouble remembering what was said in court. That may impair his ability to be a witness, especially formulating answers and handling questions. She was of the view that he would still have those difficulties even with shortened days (TP22-24, 37-38). However, she did note in her report of 25th September, 2003 that, in her review of him, he had improved since she first saw him and “....he should be fit to give evidence for short periods of time....” In evidence, Dr Boundy adhered to that view but said that his ability to give evidence in his own defence may be compromised. Although she had not undertaken specific tests, she was also under the impression that his long-term memory is impaired but the extent is uncertain.
Although I do not stay to summarise all of Dr Boundy’s reports and evidence, I have had regard to them.
Dr C. Kneebone, Senior Visiting Neurologist, also provided reports and gave evidence. In his most recent report (30th September, 2003) he said he summarised his view in this way:-
“I remain of the view that much of Mr Wahlsted’s clinical presentation is non‑organically based but I am not able to differentiate between malingering and a conversion disorder. While nothing has emerged which makes me believe that he is medically or cognitively unfit to stand trial, it may be that the limitations that would be imposed by his presentation may limit court procedures to an extent that a fair trial may be difficult to conduct.”
He was asked about his view if the court only sat limited hours with breaks when he had access to his barrister. As I understand his evidence, he would be able to physically cope with that regime, would understand the nature of the evidence and instruct his barrister (TP55, 58). Interestingly, Dr Kneebone said that, although the accused was on a lot of medication, “....there would be also many people who hold down normal jobs and they are on those medications” (TP57, 64-5).
Mr Balfour, Registered Psychologist, prepared very comprehensive reports upon the accused. Mr Balfour interviewed him and conducted a number of psychological tests. Although he originally took the view that the accused was fit to stand trial, in his most recent report of 15th September, 2003, he thought he was unfit for trial. I refer in particular to his discussion under the heading “Is Mr Wahlstedt fit to stand trial?” Upon a reading of that discussion in conjunction with his evidence on it, Mr Balfour’s opinion was based upon the assumption that the trial would take three to five or more full days. However, if the court sat for two to three hours each day with breaks on the hour, he would revert to his previous opinion that the accused is fit to stand trial applying the criteria to which he refers (TP73, 76-82).
Finally, Dr K.P. O’Brien, Forensic Psychiatrist, also provided reports and gave evidence. In his report of 24th September, 2003, Dr O’Brien said this:-
“In the past, I have held a view that Mr Wahlstedt may be fit to plead and fit to stand trial provided due sensitivity and patience is afforded to him with respect to his unique pathologies. Whilst in many respects that remains my view, there is an increasing consensus amongst other examiners (namely Drs Boundy and Kneebone together with Mr Balfour), that there is a significant problem with Mr Wahlstedt’s capacity to concentrate on court proceedings, to remember the detail and to participate in a meaningful fashion. I cannot ignore this consensus, particularly from experts more experienced in the field of organic pathology and cognitive defects than I. Therefore I too have to express similar reservations at this juncture about Mr Wahlstedt’s fitness capabilities.”

Dr O’Brien was also asked about the accused’s fitness on the basis of reduced sitting hours. He thought modifications of that type were a move in the right direction and may assist with the difficulties being expressed by the accused. However, he had reservations about the fitness of the accused to stand trial and regarded him as being on the “....cusp of fitness and unfitness” (TP98-99, 92).
Summary and conclusion
The accused’s medical problems and medications are referred to above. It seems that his physical and mental state have deteriorated over the past few years. He has become prone to complex partial seizures, although this condition falls short of epilepsy. The medications that it is necessary for him to take induce drowsiness and perhaps sleep. Communication with him is not easy because of wandering concentration on his part. Questioning him is a slow process. He has short-term memory problems. His long-term memory problems seem less clear. There remains a significant question mark over the extent of both his short-term and long-term memory. Any on-going pain from his various conditions is dealt with by using strong pain-killers.
Applying the tests referred to in Presser (supra) and having regard to the various experts reports and evidence, in my view the accused has not demonstrated, on the balance of probabilities, that he is mentally unfit for trial. Like Dr O’Brien, I consider the accused to be very much at the cusp of fitness or unfitness but, having regard to the trial arrangements that can be put in place, he has failed to demonstrate that he is unfit. I propose to sit only in the morning of each day, starting at 10.00 a.m. with a break at 11.00 a.m. for 20-30 minutes and then through to about 12.30-1.00 p.m. depending on the accused’s situation. Particularly, he has the ability to give evidence even though that process may be slow and tiring. Any questioning would have to be undertaken with due sensitivity to his conditions.

[2003] SADC 172

13 November 2003