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Court of Criminal Appeal 7 June 2006

Kirkwood v R

[2006] NSWCCA 181

Assault & violence
APPEAL AND NEW TRIAL OFFENCE UNDER S.97(1) CRIMES ACT 1900

Citation: Kirkwood v R [2006] NSWCCA 181
Court: NSW Court of Criminal Appeal
Date: 7 June 2006
Judge(s): McClellan CJ at CL, Johnson J, Latham J

Background

The appellant pleaded guilty to assault with intent to rob whilst armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900. He entered his plea in the Newcastle Local Court in August 2005 and was later committed to the District Court for sentencing, where he confirmed his plea and was sentenced to three years' imprisonment with a one-year non-parole period.

The appellant had a significant psychiatric history. He had been diagnosed with Asperger's Syndrome and a range of other psychiatric conditions, and had previously been found unfit to stand trial in District Court proceedings in 2000 and 2001. Despite this background, no psychiatric evidence directly addressing his fitness at the time of his 2005 pleas had been placed before the court at the time of sentencing.

The appellant appealed to the Court of Criminal Appeal on the ground that his convictions were improper because he may have been unfit to be tried when he entered those pleas. A second conviction, relating to a carjacking offence, was abandoned at the hearing.

  • Whether fresh psychiatric evidence, presented for the first time on appeal, raised a sufficient question about the appellant's fitness to be tried at the time he entered his guilty pleas in August and October 2005
  • Whether the test in R v RTI (2003) 58 NSWLR 438 was satisfied so as to require the conviction to be quashed

Decision

Until the day of the appeal hearing, no psychiatric evidence had been placed before the Court that directly addressed the appellant's fitness to stand trial at the relevant times in 2005. As a result, the Crown had previously maintained, properly, that there was no evidentiary basis for the Court to intervene.

At the hearing, forensic psychiatrist Dr Olav Nielssen gave evidence that, based on his earlier assessments of the appellant and Justice Health records from July to October 2005, it was more probable than not that the appellant was unfit to be tried as at both 24 August 2005 and 20 October 2005. This assessment was made by reference to the fitness test set out in R v Presser (1958) VR 45, which asks whether a defendant has the capacity to understand and participate meaningfully in proceedings against them.

The applicable test for the Court of Criminal Appeal in these circumstances, drawn from R v RTI, is whether the material before the Court raises a question about the propriety of the conviction on the basis that the appellant may have been unfit to stand trial. The conviction must be quashed unless the Court is satisfied that, had the question been raised at the time, the trial court acting reasonably must have found the appellant fit. The Crown accepted that Dr Nielssen's evidence satisfied this test and that the conviction could not stand.

The Court quashed the conviction and ordered a new trial. Consistent with the approach in R v Henley [2005] NSWCCA 126, the Court noted that the provisions of the Mental Health (Criminal Procedure) Act 1990 and other relevant statutes would be available to address the question of fitness in any new proceedings.

Orders Made

  • Conviction quashed
  • New trial ordered

Key Takeaways

  • Under the test in R v RTI, an appellate court must quash a conviction if material before it raises a question about whether the defendant may have been unfit to stand trial, unless the court is satisfied the trial court acting reasonably must have found the defendant fit.
  • A guilty plea does not, of itself, foreclose an appeal on fitness grounds. Where fresh psychiatric evidence establishes probable unfitness at the time the plea was entered, the plea cannot operate as an impediment to the appeal.
  • Psychiatric evidence addressing fitness must directly relate to the defendant's condition at the time of the relevant proceedings, not merely establish a general history of mental illness or prior findings of unfitness in unrelated matters.
  • Where a new trial is ordered following a conviction quashed on fitness grounds, the Mental Health (Criminal Procedure) Act 1990 and other applicable statutes remain available to govern how the fitness question is determined in those new proceedings.
  • The absence of timely psychiatric evidence can leave an appellate court without a sufficient evidentiary basis to intervene, even where a defendant has a significant and well-documented history of mental illness and prior unfitness findings.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(1), 154C(2), 474E(1)(b)
- Criminal Procedure Act 1986 (NSW), ss 102, 105
- Mental Health (Criminal Procedure) Act 1990 (NSW), s 32

Cases
- R v Presser (1958) VR 45 (the foundational test for fitness to stand trial)
- R v RTI (2003) 58 NSWLR 438 (test for quashing a conviction on fitness grounds on appeal)
- R v Rivkin (2004) 59 NSWLR 284
- R v Henley [2005] NSWCCA 126