Citation: R v Leaton Richard Kingsly SUTCLIFFE [2008] NSWDC 327
Court: District Court of New South Wales
Date: 15 December 2008
Judge(s): Berman SC DCJ
Background
The accused was before the District Court facing criminal charges. Before the trial could proceed, a question arose as to whether he was fit to stand trial, prompting a formal inquiry under the Mental Health (Criminal Procedure) Act 1990.
Two forensic psychiatrists, Dr Westmore and Dr Neilson, separately examined the accused and each provided written reports to the court. Both reached the same conclusion: the accused was unfit to be tried.
The Crown tendered both reports without objection from the accused's counsel. The inquiry was conducted by the judge alone, consistent with the non-adversarial nature of fitness hearings under the Act.
Legal Issues
- Whether the accused was fit to be tried within the meaning of the Mental Health (Criminal Procedure) Act 1990
- Whether the accused could satisfy the relevant criteria established by the Presser test for fitness to stand trial
Decision
His Honour applied the Presser test, which requires, among other things, that an accused be able to give instructions to counsel (including conveying their version of the facts) and be able to understand the case being made against them so as to respond to it.
The court found that the accused was wholly unable to engage in coherent communication. Dr Westmore's report documented exchanges in which questions were met with entirely unrelated responses. For instance, when asked whether his conduct was wrong, the accused responded with a non-sequitur reference to Lord Carnarvon dying of a mosquito bite. Dr Neilson confirmed these findings, noting that a severe communication disorder would prevent the accused from giving reliable instructions or following proceedings in any meaningful way.
His Honour was satisfied beyond any doubt that the accused could not satisfy the minimum requirements of the Presser test. While the accused might be physically present at a trial, his mental inability to participate would render him effectively absent from the proceedings.
Orders Made
- The accused was found unfit to be tried.
- The accused was referred to the Mental Health Review Tribunal.
- The accused was remanded in custody pending the Tribunal's determination taking effect.
Key Takeaways
- A fitness inquiry under the Mental Health (Criminal Procedure) Act 1990 is not adversarial, and neither the Crown nor the accused bears an onus of proof.
- The Presser test requires, at minimum, that an accused be capable of instructing counsel and of understanding the case against them; an inability to communicate meaningfully will defeat both requirements.
- The District Court found that expert psychiatric evidence from two independent clinicians, both reaching the same conclusion, was sufficient to establish unfitness to the requisite standard.
- Where an accused is found unfit, the court refers the matter to the Mental Health Review Tribunal rather than proceeding to trial.
- Physical presence at trial is not sufficient; the Presser test demands meaningful mental participation in the proceedings.
Legislation and Cases Referenced
Legislation
- Mental Health (Criminal Procedure) Act 1990 (NSW), s 11
Cases
- R v Presser [1958] VR 45 (the Presser test for fitness to stand trial, applied but not formally cited in the judgment text)