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Supreme Court 12 November 2007

R v Huy Pham

[2007] NSWSC 1312

Assault & violenceHomicideFirearms & weaponsPublic order & justice offences
CRIMINAL LAW FITNESS TO BE TRIED

Citation: R v Huy Pham [2007] NSWSC 1312
Court: Supreme Court of New South Wales
Date: 12 November 2007
Judge(s): James J

Background

The accused faced six charges arising from alleged events on 4 August 2004, including the murder of his wife's uncle, attempted murder of his wife, threats with a firearm, arson of a pharmacy, and two firearms possession offences.

A jury had found the accused unfit to be tried in February 2006, and the matter was referred to the Mental Health Review Tribunal. The Tribunal subsequently formed the opinion that the accused had become fit to be tried by July 2007, which prompted a fresh fitness inquiry before James J.

Two consultant psychiatrists, Dr Olav Nielssen and Dr Bruce Westmore, provided reports for the hearing. Both concluded the accused had recovered sufficiently to meet the legal standard for fitness. The accused elected, with the consent of the Director of Public Prosecutions, to have the fitness question determined by a judge alone rather than a jury.

  • Whether the accused met the minimum standards for fitness to be tried as stated in R v Presser [1958] VR 45, despite diagnoses of paranoid schizophrenia in partial remission and a resolving hypoxic brain injury
  • Which version of the Mental Health (Criminal Procedure) Act 1990 applied, given the proceedings were commenced before the 2005 amendments

Decision

James J applied the well-established Presser test, which requires an accused to understand the charges, be capable of entering a plea, understand the general nature of the proceedings, follow the course of the trial, understand the substantial effect of evidence led against them, and be able to instruct counsel and communicate their version of events. The High Court has approved this test, including in Kesavarajah v The Queen (1994) 181 CLR 230, which also identified the anticipated length of the trial as a relevant consideration. James J noted the trial was expected to be short.

Both psychiatrists agreed the accused was fit. Dr Westmore found the accused was aware of the charges, understood the nature of the proceedings, and was able to give instructions. Dr Nielssen reached the same conclusion, noting the accused understood that he could elect to have his fitness determined by a judge alone and could follow and engage with the process.

Notwithstanding the psychiatric diagnoses, James J was satisfied that the Presser criteria were met. The accused understood the charges, appreciated that a not-guilty plea on grounds of mental illness was available to him, understood that the Director of Public Prosecutions was prosecuting him, knew that a tribunal of fact would hear evidence from both sides, and retained the capacity to follow proceedings and contribute to his defence.

On the procedural question, it was common ground between counsel that the pre-amendment provisions of the Mental Health (Criminal Procedure) Act governed the inquiry, because proceedings commenced before the 2005 amending legislation took effect.

Orders Made

  • The accused was found fit to be tried for the offences charged.
  • Criminal proceedings against the accused are to continue in accordance with the appropriate criminal procedures under s 13 of the Mental Health (Criminal Procedure) Act 1990.

Key Takeaways

  • The Presser test remains the governing standard for fitness to be tried in New South Wales: an accused must meet minimum cognitive and communicative thresholds, but need not possess the mental capacity to mount an able defence.
  • A diagnosis of paranoid schizophrenia in partial remission and a resolving hypoxic brain injury did not, on the evidence here, preclude a finding of fitness where psychiatric assessment confirmed sufficient functional capacity.
  • Under Kesavarajah, the anticipated length and complexity of the trial is a relevant consideration in the fitness assessment, with a shorter trial weighing in favour of fitness.
  • The transitional provisions of the Mental Health (Criminal Procedure) Act determined which procedural regime applied: proceedings commenced before the 2005 amendments took effect continued to be governed by the former provisions.
  • The fitness inquiry under s 12 of the Act is not conducted as an adversarial contest; no onus of proof rests on either party, and the standard of proof is the balance of probabilities.

Legislation and Cases Referenced

Legislation
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 6, 12, 13, Schedule 1 cl 3(2)
- Mental Health (Criminal Procedure) Amendment Act 2005 (NSW) No 109, Schedule 1 cl 4

Cases
- R v Presser [1958] VR 45 (Smith J's statement of the fitness test)
- Kesavarajah v The Queen (1994) 181 CLR 230 (High Court approval of the Presser test; trial length as a relevant factor)