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Supreme Court 19 October 2012

R v James

[2012] NSWSC 1268

Homicide
CRIMINAL LAW PROCEDURE WHETHER ACCUSED FIT TO BE TRIED NO DISPUTE BETWEEN EXPERT EVIDENCE ACCUSED FIT

Citation: R v James [2012] NSWSC 1268
Court: Supreme Court of New South Wales
Date: 19 October 2012
Judge(s): Button J

Background

The accused was charged with murder following the discovery of the deceased's body at a Doonside home in May 2011. The accused was arrested that same day and formally charged the following day. The question of the accused's fitness to stand trial was raised in good faith by his legal representatives, who had developed concerns through conferences with him.

The accused presented with a significantly adverse personal background, longstanding substance abuse, and intellectual functioning measured in the extremely low range (0.4th percentile). He also suffered from a significant anxiety disorder and, at times, reported hearing a voice he described as belonging to Satan.

The fitness inquiry proceeded before Button J sitting alone without a jury, as required by the Mental Health (Forensic Provisions) Act 1990. Expert evidence was obtained from both the defence and the Crown.

  • Whether the accused was fit to stand trial within the meaning of the test in R v Presser [1958] VR 45
  • Whether the evidence supported a finding of fitness despite the accused's low intellectual functioning and anxiety disorder
  • What procedural requirements governed the conduct of the fitness inquiry under the Mental Health (Forensic Provisions) Act 1990

Decision

Button J applied the well-established test from R v Presser, which requires an accused to meet certain minimum standards before being tried without unfairness or injustice. Those standards include: understanding the charge; being able to plead and exercise the right of challenge; understanding generally the nature of the proceedings; and being able to follow the course of those proceedings.

Two experts assessed the accused over an extended period. A clinical neuropsychologist initially expressed the opinion that the accused was unfit, based on cognitive limitations and heightened anxiety. A forensic psychiatrist later assessed the accused as sitting at the "marginal" end of the fitness spectrum, noting that the anxiety disorder was the primary concern rather than cognitive ability alone. By October 2012, the neuropsychologist had revised her opinion following a further assessment and concluded, on the balance of probabilities, that the accused was fit to stand trial.

Button J accepted the accuracy, expertise, and methodology of both experts, and noted that their final opinions were unanimous in favour of fitness. No evidence was placed before the Court from the accused's solicitor suggesting an inability to receive proper instructions or any other remaining impediment to the accused's participation in the trial.

The finding of fitness was expressly predicated on two conditions reflected in both expert reports: the provision of frequent breaks during the trial, and the constant availability of a support person for the accused.

Orders Made

  • The accused having been found fit to stand trial, the proceedings were adjourned to the Arraignments List in the Supreme Court at 10am on Friday 2 November 2012.

Key Takeaways

  • Fitness to stand trial is assessed against the minimum standards set out in R v Presser, requiring the accused to understand the charge, follow the proceedings, and meaningfully engage with the trial process.
  • Where expert opinions that were initially divergent converge by the time of the hearing, and no contrary evidence is led, a court is well placed to accept that unanimous view without qualification.
  • An accused's intellectual functioning alone does not determine the fitness question; anxiety disorders and other psychological conditions may independently raise fitness concerns and must be assessed on their own terms.
  • A finding of fitness can incorporate conditions, such as regular breaks and the presence of a support person, where expert evidence identifies those measures as necessary to enable adequate participation in proceedings.
  • Under the Mental Health (Forensic Provisions) Act 1990, a fitness inquiry is not conducted in an adversarial manner and no onus of proof rests on either party.

Legislation and Cases Referenced

Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 10, 11, 12, 13

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