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Supreme Court 3 December 2012

R v FVT

[2012] NSWSC 1488

Homicide
CRIMINAL LAW FITNESS TO STAND TRIAL

Citation: R v FVT [2012] NSWSC 1488
Court: Supreme Court of New South Wales
Date: 3 December 2012
Judge: Bellew J

Background

The accused faced a charge of murdering his former de facto partner, with the Crown alleging the offence occurred in or around July 2010. Before any trial could proceed, the court was required to conduct a formal inquiry into whether the accused was fit to stand trial, as required under the Mental Health (Forensic Procedures) Act 1990.

Both the Crown and the accused's legal representatives approached the hearing cooperatively, tendering a joint body of medical and forensic material without cross-examining any of the expert witnesses. That material included multiple psychiatric and neuropsychological reports, as well as the results of a CT brain scan.

  • Whether the question of fitness to stand trial had been raised in good faith, as required by s 10(2) of the Mental Health (Forensic Procedures) Act 1990
  • Whether the accused was fit to stand trial, assessed on the balance of probabilities under s 6 of the Act
  • Whether modifications to court procedures could ameliorate the accused's difficulties sufficiently to render him fit

Decision

Bellew J confirmed that the governing test for fitness to stand trial derives from R v Presser [1958] VR 45. Under that test, an accused must be able to understand the charge, follow proceedings in a general sense, comprehend the substantial effect of evidence given against them, and give instructions to counsel. The High Court in Kesavarajah v The Queen (1994) 181 CLR 230 added that the court must also consider the length of the trial, since an accused's fitness may fluctuate.

Dr Olav Nielssen, a psychiatrist retained on behalf of the accused, provided two reports concluding that the accused was permanently unfit for trial. Dr Nielssen identified significant impairments in attention, concentration, and short-term memory that would prevent the accused from following aspects of the trial, retaining legal advice, and providing coherent instructions. He assessed these deficits as irreversible and likely to deteriorate further. A CT scan confirmed mild generalised cerebral atrophy and multiple lacunar infarcts in the brain.

Professor David Greenberg, a forensic psychiatrist retained by the Crown, offered a less definitive conclusion but nonetheless could not support a finding of fitness. Critically, Professor Greenberg's supplementary report addressed a specific question raised in correspondence: whether modifications to court procedures might enable the accused to stand trial. His answer was that no such modifications would adequately address the accused's difficulties.

Applying the balance of probabilities standard and treating the unchallenged expert opinions of Dr Nielssen and Professor Greenberg as the primary basis for his determination, Bellew J was satisfied that the accused was unfit to stand trial. His Honour noted that the question of fitness had been raised in good faith, founded on the totality of the medical evidence.

Orders Made

  • The accused was referred to the Mental Health Review Tribunal pursuant to s 14 of the Mental Health (Forensic Provisions) Act 1990
  • The accused was remanded in custody until effect was given to any determination made by the Mental Health Review Tribunal
  • The Registrar was directed to provide the Mental Health Review Tribunal with a copy of Exhibit A and a copy of the reasons for judgment

Key Takeaways

  • The Supreme Court applied the long-established Presser criteria, which require an accused to be able to understand the charge, follow proceedings, comprehend evidence, and give meaningful instructions to counsel.
  • Under s 6 of the Mental Health (Forensic Procedures) Act 1990, fitness is determined on the balance of probabilities, with no onus resting on either party by virtue of s 12(3).
  • Where expert opinions are tendered without challenge, a court may proceed to determine fitness on that unchallenged material alone.
  • A finding of permanent unfitness can be supported where the medical evidence establishes irreversible cognitive impairment, even if one expert's conclusion is less definitive than another's.
  • Proposed modifications to court procedures will not automatically cure an unfitness finding; the court may require expert evidence specifically addressing whether such modifications would ameliorate the accused's particular difficulties.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Procedures) Act 1990 (NSW), ss 6, 10(2), 12(3), 14

Cases
- R v Presser [1958] VR 45
- Kesavarajah v The Queen (1994) 181 CLR 230