Citation: R v Chanthasaeng, Songsangkong [2008] NSWDC 122
Court: District Court of New South Wales
Date: 11 June 2008
Judge(s): Nicholson SC DCJ
Background
The accused was charged with two counts of supplying a prohibited drug, specifically 30.2 grams of methylamphetamine and 7 grams of heroin, and in the alternative with being knowingly concerned in the supply of each drug. The alleged offences occurred on 27 July 2007, when police stopped a vehicle in which the accused was a passenger and discovered the drugs concealed in the fuel cap compartment. The accused had been in remand custody since the date of his arrest.
When the accused was presented for arraignment, the court was informed that a question arose as to his fitness to be tried. Before the fitness inquiry could proceed, his legal representative made an application under s 10(4) of the Mental Health (Criminal Procedure) Act 1990 for the court to decline to conduct an inquiry, dismiss the charges, and order the accused's release.
The court therefore faced two sequential questions: first, whether to exercise the discretion to dismiss the charges without holding a fitness inquiry; and second, if that application was refused, whether the accused was in fact unfit to be tried.
Legal Issues
- Whether the court should exercise its discretion under s 10(4) of the Mental Health (Criminal Procedure) Act 1990 to decline to conduct a fitness inquiry and instead dismiss the charges
- What criteria apply to that discretion, particularly the application of the s 556A principles to the offence and the offender
- Whether the accused was unfit to be tried, assessed against the criteria established in Queen v Presser [1958] VR 45
Decision
Application to dismiss the charges
The court declined to exercise the s 10(4) discretion. Applying the s 556A criteria, the court assessed both the seriousness of the offence and the personal circumstances of the accused. The Crown case was strong: the accused had identified the drugs himself, the quantity of methylamphetamine was ten times the trafficable quantity, the drugs had an estimated street value of approximately $16,000, and the court was prepared to accept that supply for financial gain was readily inferable. The court also noted that the offence was allegedly committed while the accused was on bail for a prior drug supply matter, which weighed heavily against dismissal.
The court acknowledged the accused's history of drug dependence, difficult personal background, time already spent on remand, and the mental health issues raised. However, those matters did not outweigh the gravity of the offending. On balance, dismissing the charges without a fitness hearing was not appropriate in these circumstances.
Fitness to be tried
The court then conducted the fitness inquiry, applying the Presser criteria, which require an accused to be able to understand the nature of the proceedings, follow what happens at trial, understand the evidence, instruct counsel, and make a proper defence. Psychiatric evidence was provided by multiple doctors, including diagnoses of bipolar disorder and observations of paranoid and conspiratorial thinking. The court noted a letter the accused had written to the High Court as compelling evidence of thought disorder and a fundamental misconception of the court's role in criminal proceedings.
The court found that while the accused appeared to understand the charges and the general circumstances alleged against him, his paranoid and conspiratorial thinking was likely to distort his perception of evidence and witnesses during a trial. He lacked the capacity to sensibly challenge jurors, to determine whether to be tried by a judge alone or by jury, and to give coherent instructions to his solicitors or articulate a defence understandable to a jury. On the balance of probabilities, the court was satisfied that the accused was unfit to be tried.
Orders Made
- Application under s 10(4) to decline to conduct the fitness inquiry and dismiss the charges: refused
- Accused found unfit to be tried
- Matter referred to the Mental Health Review Tribunal
Key Takeaways
- The District Court confirmed that the s 10(4) discretion to dismiss charges without a fitness inquiry is not lightly exercised where the alleged offending is serious, the Crown case is strong, and aggravating circumstances such as offending on bail are present.
- Under the Presser criteria, unfitness does not require global cognitive incapacity. An accused may understand the charges and follow proceedings in a general sense, yet still be unfit if paranoid or conspiratorial thinking is likely to distort their engagement with evidence and their ability to give coherent instructions.
- A letter written by the accused to the High Court was treated as direct evidence of thought disorder, illustrating that communications produced by the accused outside the formal proceedings can inform a fitness determination.
- Where psychiatric evidence from multiple experts is not materially inconsistent, a court may reconcile their findings rather than prefer one over another. Here, the absence of observed elevated or depressed mood at one examination was consistent with the fluctuating nature of a bipolar diagnosis.
- Referral to the Mental Health Review Tribunal is the prescribed outcome once a court finds an accused unfit to be tried, meaning the question of guilt is not determined and the proceedings are stayed pending further assessment.
Legislation and Cases Referenced
Legislation
- Mental Health (Criminal Procedure) Act 1990 (NSW), s 10 (including s 10(4))
- Crimes Act 1900 (NSW), s 556A (criteria applied by analogy to the dismissal discretion)
Cases
- Queen v Presser [1958] VR 45 (fitness to be tried criteria)
- R v Newman [2007] NSWCCA 103
- DPP v Mills [2000] NSWCCA 326
- R v Mailes [2001] NSWCCA 155
- R v Dennison NSWCCA, 3 March 1988