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Supreme Court 24 March 2011

R v Waszczuk

[2011] NSWSC 212

Homicide
CRIMINAL LAW PROCEDURE FITNESS TO PLEAD OR BE TRIED INQUIRY HELD FINDING OF UNFITNESS

Citation: R v Waszczuk [2011] NSWSC 212
Court: Supreme Court of New South Wales
Date: 24 March 2011
Judge: R A Hulme J

Background

The offender had pleaded guilty to murder in the Local Court and confirmed that plea on arraignment in the Supreme Court. The offence involved the killing of his father in circumstances described by the court as "somewhat bizarre." The matter came before Hulme J for sentencing in June 2010.

During the sentencing proceedings, no medico-legal reports addressing the offender's mental state at the time of the offence were initially before the court. The judge stood the matter over to obtain a report from Justice Health. Reports were subsequently provided by two forensic psychiatrists: Professor Greenberg and Dr Bruce Westmore.

As the reports emerged, a question arose not only about the appropriate sentence but about whether the offender was fit to be tried at all. That fitness question, which can arise at any stage of criminal proceedings, became the central issue the court had to resolve before anything else could proceed.

  • Whether, at the point of sentencing following a guilty plea, the offender had sufficient mental capacity to be fit to be tried, as that concept is understood following R v Presser [1958] VR 45.
  • Specifically, whether the offender retained sufficient capacity to make his version of the facts known to his counsel, being the final criterion in the Presser list of fitness requirements.
  • Whether the court should continue to proceed on the basis of the offender's guilty plea.

Decision

The fitness question turned on a specific criterion drawn from R v Presser: whether the offender had sufficient capacity to make his version of the facts, including his reasons for acting as he did, known to his counsel. Professor Greenberg expressed the view that if the offender had disclosed those reasons to his solicitors under legal professional privilege, fitness would be established. If he had not, Professor Greenberg's opinion was that the offender was unfit, given concerns about ongoing delusional and paranoid beliefs.

Evidence from a psychiatry registrar, Mr Shukla, confirmed that the offender had not in fact made those disclosures to his legal representatives. This meant Professor Greenberg's conditional opinion resolved into an unqualified finding of unfitness. Dr Westmore maintained a view of fitness but acknowledged the matter was "most complex," and the court interpreted that qualification as recognition that the issue was far from clear.

Hulme J accepted Professor Greenberg's opinion. The court found it most likely that the offender's decisions, including his stated preference not to raise a mental illness defence and his refusal to disclose his reasons to his lawyers, were not rationally based but were driven by his mental illness. The court noted that the offender was severely mentally ill, almost certainly so at the time of the killing, and that any insight he had into that illness was at best very limited.

The court was satisfied on the material before it that the offender lacked sufficient capacity to make his version of the facts known to his counsel. Accordingly, it found him unfit to be tried. The court also noted that there is no onus of proof in a fitness inquiry: the question is simply whether the court is satisfied as to unfitness on the material available.

Orders Made

  • The offender was found unfit to be tried.
  • Pursuant to s 14 of the Mental Health (Forensic Provisions) Act 1990, the offender was referred to the Mental Health Review Tribunal.
  • The offender was remanded in custody until the Tribunal's determination had been given effect.
  • The Registrar was directed to forward to the Tribunal all forensic psychiatrist reports and the transcript of evidence given by Professor Greenberg and Mr Shukla.

Key Takeaways

  • A fitness inquiry under the Mental Health (Forensic Provisions) Act 1990 can be raised and conducted during sentencing proceedings, even after a guilty plea has been entered and confirmed.
  • The Presser criteria apply at the sentencing stage, and the capacity to make one's version of the facts known to counsel remains a live requirement even where a plea has already been entered.
  • Where a psychiatrist's opinion of fitness is expressly conditional on a fact (here, whether the offender had disclosed his reasons to his lawyers), and evidence establishes that the condition has not been met, the conditional opinion resolves against fitness.
  • No onus of proof applies in a fitness inquiry: the court must simply be satisfied as to the question on the material before it.
  • High intelligence and apparently rational explanations for litigation decisions do not preclude a finding of unfitness where the court concludes those decisions are most likely driven by ongoing delusional beliefs rather than genuine rational reasoning.

Legislation and Cases Referenced

Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 14, 55

Cases:
- R v Presser [1958] VR 45 (Victorian Supreme Court: the foundational statement of criteria for fitness to be tried)