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Supreme Court 11 October 2011

R v Bailey

[2011] NSWSC 1228

HomicidePublic order & justice offences
CRIMINAL LAW ACCUSED CHARGED WITH MURDER WHETHER FIT TO BE TRIED CHRONIC SCHIZOAFFECTIVE DISORDER NO ISSUE OF PRINCIPLE

Citation: R v Bailey [2011] NSWSC 1228
Court: Supreme Court of New South Wales
Date: 11 October 2011
Judge(s): Garling J

Background

The accused faced a single count of murder under s 18(1)(a) of the Crimes Act 1900 (NSW), arising from the death of a man at a hotel in Laurieton on 20 August 2010. The accused had a lengthy history of chronic mental illness dating to his mid-twenties, including multiple hospital admissions and Community Treatment Orders related to his failure to take anti-psychotic medication consistently.

In the weeks before the alleged offence, family members observed the accused displaying clear signs of mental illness. On the day in question, his family had been driving him to a hospital mental health unit for assessment when the incident occurred that evening.

Justice Latham had earlier ordered, on 2 September 2011, that an inquiry be conducted into the accused's fitness to stand trial. Garling J conducted that inquiry following arraignment, without a plea being entered.

  • Whether the accused met the minimum fitness criteria established in R v Presser (1958) VR 45, as confirmed by the High Court in Kesavarajah v R (1994) 181 CLR 230
  • Whether uncontested expert psychiatric evidence was sufficient to establish unfitness on the balance of probabilities under the Mental Health (Forensic Provisions) Act 1990

Decision

Garling J set out the applicable Presser criteria, which require an accused to understand the charge, enter a plea, challenge jurors, follow the proceedings, understand the effect of evidence against them, and provide their counsel with sufficient instructions to make a defence. The inquiry was conducted on the balance of probabilities, without any onus resting on either party, and not in an adversarial manner.

The sole expert evidence came from Professor David Greenberg, a forensic psychiatrist who had examined the accused on four occasions. Professor Greenberg concluded that the accused suffered from chronic Schizoaffective Disorder and, at the time of examination, displayed symptoms including hostility, agitation, labile mood, grossly impaired insight, and an unrealistic understanding of his situation. Professor Greenberg also expressed the view that the accused likely had a mental illness defence available to him at trial, given that the accused probably did not understand the nature, quality, or wrongfulness of his actions at the time of the alleged offence.

Garling J noted the serious consequences a finding of unfitness carries, including indefinite detention without trial, and acknowledged the common law principle that a criminal trial cannot fairly proceed against a person who is unfit to plead. On the uncontested expert evidence before him, his Honour was satisfied on the balance of probabilities that the accused was presently unfit to stand trial. Professor Greenberg had expressed a view that the accused might become fit to stand trial within the following 12 months with appropriate treatment.

Orders Made

  • The accused was found unfit to be tried.
  • The matter was referred to the Mental Health Review Tribunal under s 14 of the Mental Health (Forensic Provisions) Act 1990.
  • The accused was remanded in custody pending the Tribunal's determination under s 16 of that Act.
  • The Registrar was directed to provide the Tribunal within seven days with copies of the finding and reasons, the orders, the transcript, Professor Greenberg's psychiatric reports, and the Crown Case Statement.

Key Takeaways

  • Fitness to stand trial is assessed against the minimum standards in R v Presser, including the accused's capacity to understand the charge, follow proceedings, and give adequate instructions to counsel.
  • Under the Mental Health (Forensic Provisions) Act 1990, the fitness inquiry is conducted on the balance of probabilities, is non-adversarial, and places no onus of proof on either party.
  • A finding of unfitness carries serious consequences for the accused, ordinarily resulting in indefinite detention without trial rather than a resolution of the charge.
  • Where an accused may have a mental illness defence available at trial, the capacity to understand and propound that defence is a relevant factor within the fitness assessment.
  • Uncontested expert psychiatric evidence from a forensic psychiatrist, founded on multiple examinations and a comprehensive clinical history, can be sufficient to establish unfitness to the requisite standard.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18(1)(a)
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 6, 8, 11, 12, 14, 16
- Mental Health Act 1990 (NSW) (repealed)

Cases
- R v Presser (1958) VR 45
- Kesavarajah v R (1994) 181 CLR 230
- Eastman v R (2000) 203 CLR 1
- R v Robinson [2008] NSWCCA 64