Citation: R v Calvin Glen Walker [2008] NSWSC 462
Court: Supreme Court of New South Wales
Date: 15 May 2008
Judge(s): Harrison J
Background
The accused faced a single charge of murdering Douglas Nicholas Walker at Tabulam on 2 December 2006. The Crown alleged that the accused stabbed the deceased once in the back with a kitchen knife during a physical altercation, causing a wound that penetrated the left lung and damaged blood vessels, ultimately proving fatal.
Before the trial could proceed, a question arose as to whether the accused was mentally fit to stand trial. Harrison J conducted a formal inquiry under the Mental Health (Criminal Procedure) Act 1990 on 12 May 2008 and delivered written reasons on 15 May 2008.
The accused had a lengthy documented history of psychiatric illness, including diagnoses of schizophrenia, psychosis, and polysubstance abuse, as well as developmental retardation and poor literacy and numeracy. He had received antipsychotic medication at various points but had been non-compliant with treatment for extended periods.
Legal Issues
- Whether the accused was unfit to stand trial for murder within the meaning of the Mental Health (Criminal Procedure) Act 1990
- Whether fitness to be tried could encompass developmental or intellectual disability, not merely mental illness
Decision
Harrison J heard oral evidence from two forensic psychiatrists, Professor David Greenberg and Dr Bruce Westmore, as well as a report from Associate Professor Wayne Reid. Both Professor Greenberg and Dr Westmore had conducted recent examinations of the accused and expressed the opinion that he was unfit to stand trial.
The court applied the test for fitness to stand trial drawn from the Victorian case of R v Presser, which sets out the minimum cognitive capacities a person must have to participate meaningfully in their own trial. The court also noted the principle, confirmed in R v Mailes, that unfitness is not limited to mental illness but extends to developmental or intellectual disability.
The accused's observed behaviour during the proceedings was itself notable. He sat silently throughout, showed no visible reaction to proceedings, gave no instructions to his counsel, and appeared to Harrison J to be entirely disconnected from what was occurring. That observation, while acknowledged as far less informative than the expert assessments, was consistent with the medical opinions.
On the balance of probabilities, the court found the accused unfit to stand trial. Harrison J also noted both parties' request that the Mental Health Review Tribunal consult with Professor Greenberg and Dr Westmore before making any further determination, and strongly recommended that course be followed.
Orders Made
- The accused Calvin Glen Walker was found unfit to be tried for the murder of Douglas Nicholas Walker on 2 December 2006.
- The accused was referred to the Mental Health Review Tribunal pursuant to section 14 of the Mental Health (Criminal Procedure) Act 1990.
- The accused was remanded to his former custody pending the Tribunal's determination under section 16, or until further order.
Key Takeaways
- The Supreme Court applied the R v Presser criteria to determine fitness to stand trial, assessing whether the accused possessed the minimum capacities required to participate meaningfully in the proceedings.
- Unfitness to stand trial is not confined to mental illness in the strict diagnostic sense. As confirmed in R v Mailes, developmental or intellectual disability is equally capable of grounding a finding of unfitness.
- Where two independent forensic psychiatrists agree that an accused is unfit, and that opinion is consistent with the accused's behaviour during the hearing itself, the balance of probabilities threshold for unfitness is readily satisfied.
- Under the Mental Health (Criminal Procedure) Act 1990, a finding of unfitness triggers a mandatory referral to the Mental Health Review Tribunal, with the accused remanded in custody pending the Tribunal's determination.
- A court conducting a fitness inquiry retains a discretion to make recommendations to the Tribunal, including recommending that it consult the experts who examined the accused, though such recommendations are not binding.
Legislation and Cases Referenced
Legislation
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 14, 16
- Mental Health Act 1990 (NSW)
Cases
- R v Presser [1958] VR 45
- Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230
- R v Mailes [2001] NSWCCA 155; (2001) 53 NSWLR 251
- R v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284