Citation: R v Rush, Shayne [2009] NSWDC 325
Court: District Court of New South Wales
Date: 30 November 2009
Judge(s): Nicholson SC DCJ
Background
The accused faced an indictment containing seven charges, including aggravated indecent assault, aggravated sexual assault, and inciting an act of indecency. The charges arose from a single alleged incident in September 1997 involving a 13-year-old victim. The matter was listed for trial on 23 November 2009.
When the trial was called on, defence counsel raised a concern that the accused may be unfit to stand trial. This occurred without instructions from the accused, who was actively opposed to any fitness inquiry. Defence counsel, as an officer of the court, brought the concern forward in any event.
The court could not obtain expert psychiatric evidence because the accused refused to submit to a forensic mental health assessment. The District Court proceeded to conduct a fitness inquiry of its own motion, relying instead on an affidavit from the accused's instructing solicitor describing the accused's conduct and capacity to give instructions.
Legal Issues
- Whether the court could conduct a fitness inquiry raised by defence counsel without the accused's consent or instructions
- What the minimum standards of mental fitness required to stand trial are, as established by the authorities
- Whether the court had power to compel the accused to submit to a psychiatric examination
- Whether unfitness could be established on the balance of probabilities in the complete absence of expert psychiatric evidence
- What procedural steps were required once a finding of unfitness was made
Decision
The court accepted that neither party bore an onus of proof in a fitness inquiry, and that the inquiry could proceed on a non-adversarial basis, even though neither the accused nor the Crown had formally sought a ruling. The presumption in favour of fitness meant that unfitness had to be established on the balance of probabilities on the evidence available.
The relevant standard was drawn from R v Presser [1958] VR 45, which sets out minimum requirements including that an accused understand the charges, be capable of instructing counsel, understand the general nature of the proceedings, and be able to follow the evidence and make a defence. The court noted that fitness is assessed by reference to the accused's mental state at the time of trial, not at the time of the alleged offences, and is not limited to formal mental illness but includes intellectual and developmental incapacity.
Nicholson SC DCJ found that the accused's conduct towards his legal team was so bizarre and his apparent incapacity to give any instructions so pronounced that no other explanation was available other than some unidentified mental condition or defect. The court acknowledged the unusual evidential position created by the refusal to be assessed, noting explicitly that it had no power to compel a psychiatric examination, but concluded that the evidence before it was sufficient on the balance of probabilities to support a finding of unfitness.
Orders Made
- The accused was found unfit to be tried and referred to the Mental Health Review Tribunal
- Proceedings were adjourned generally pending the Tribunal's determination
- The accused was remanded in custody until the Tribunal's determination
Key Takeaways
- A fitness inquiry can be initiated by a court of its own motion, and defence counsel may raise fitness concerns even against the express wishes of an accused, consistent with counsel's duties as an officer of the court.
- The Presser test sets the minimum standards for fitness: the accused must, among other things, understand the charges, be capable of instructing counsel, and be able to follow and participate in the proceedings.
- Fitness to stand trial is assessed at the time of trial, not by reference to the accused's mental state at the time of the alleged offence, and is not confined to formal mental illness.
- No power existed in this court to compel an accused to submit to a psychiatric examination; the District Court could only urge cooperation and draw inferences from the available evidence.
- A finding of unfitness can be made in the complete absence of expert psychiatric evidence where the conduct of the accused, as described in a solicitor's affidavit, admits no other rational explanation than an unidentified mental condition.
Legislation and Cases Referenced
Cases:
- R v Presser [1958] VR 45 (fitness to stand trial: minimum standards)
- R v Tigger [2001] NSWCCA 53 (fitness principles)
- R v Mailes (2001) 53 NSWLR 251 (fitness not limited to mental illness; includes developmental and intellectual incapacity)
- R v Dennison, NSW Court of Criminal Appeal, unreported, 3 March 1988 (fitness assessed at time of trial)
Legislation: No specific legislation was cited in the text provided.