Citation: R v McKellar [2012] NSWSC 1567
Court: Supreme Court of New South Wales
Date: 14 December 2012
Judge(s): Latham J
Background
The accused was charged with the murder of an 81-year-old man, armed robbery with the infliction of serious bodily harm on the same victim, and possessing the proceeds of crime. The prosecution case included alleged admissions to other persons, witness observations of a male entering the victim's home with a golf stick and a knife, and DNA evidence linking the accused to the scene. The accused had not yet been arraigned at the time of this hearing.
A question arose as to whether the accused was fit to stand trial. He had a long history of mental illness, diagnosed as a chronic psychotic disorder consistent with schizophrenia, complicated by long-term poly-substance abuse. He had previously been found fit to stand trial in 2007 in separate District Court proceedings, where he had entered a plea of guilty.
The fitness inquiry was conducted under the Mental Health (Forensic Provisions) Act 1990. The hearing was not adversarial in nature, and no onus rested on either party; the question was determined on the balance of probabilities.
Legal Issues
- Whether the accused met the minimum cognitive and communicative standards required for fitness to stand trial, as stated in the Presser criteria
- How to resolve conflicting expert psychiatric and neuropsychological evidence on the accused's cognitive capacity
- What weight to give to evidence of the accused's apparent exaggeration of his cognitive deficits
- Whether any psychotic symptoms the accused was experiencing had a material impact on his fitness
Decision
The court applied the well-established Presser criteria, which require an accused to understand the charge, be able to plead, understand the general nature of the proceedings, follow the course of the trial in a broad sense, understand the substantial effect of evidence given against him, and be able to communicate his version of events to counsel. These principles have been confirmed by the High Court in both Ngatayi v The Queen and Kesavarajah v The Queen.
Expert evidence was provided by five clinicians. Dr Brown (forensic psychiatrist) and Dr Banks (clinical neuropsychologist) expressed reservations about the accuracy of the accused's self-reported difficulties and considered him fit to stand trial. Dr Allnutt (psychiatrist) acknowledged the accused probably understood the Presser criteria but identified concerns about his ability to engage and instruct counsel. Dr Pulman (clinical neuropsychologist), by contrast, found significant cognitive impairment and considered the accused unfit. The solicitor's affidavit described the accused as appearing unable to understand the roles of participants in a trial or the purpose of the fitness hearing.
The court found it significant that multiple clinicians and prison staff who had observed the accused over extended periods were satisfied he had greater capacity than he displayed in formal assessments. It was common ground among the experts, including Dr Allnutt, that the accused was exaggerating his cognitive deficits. Dr Allnutt also accepted that the accused may have been exaggerating the existence of auditory hallucinations. The court accepted Dr Brown's and Dr Banks' evidence, alongside the observations of psychiatrists and registrars who had monitored the accused in custody, and found the solicitor's affidavit, while relevant, was outweighed by the volume and quality of expert opinion.
The court was satisfied on the balance of probabilities that the accused was fit to stand trial. It noted that any limitation arising from the accused's anxiety and reluctance to engage could be addressed through careful case management, including additional adjournments where needed. The court also emphasised the importance of ongoing assessment and medication, observing that his long-standing mental illness was likely to wax and wane over time.
Orders Made
- The accused was remanded in custody to the arraignments list on 1 February 2013.
Key Takeaways
- The Presser criteria, as confirmed by the High Court, set a minimum threshold for fitness: an accused need not be able to mount an able defence, but must be capable of understanding the proceedings in a general sense and communicating a version of events to counsel.
- Fitness to stand trial is determined on the balance of probabilities under the Mental Health (Forensic Provisions) Act 1990, with no onus resting on either party, and the inquiry is conducted in a non-adversarial manner.
- Where an accused is found to be exaggerating cognitive or psychiatric deficits, that finding can inform the weight given to expert opinions that rely significantly on self-reported symptoms and responses during assessments.
- Longitudinal observations by treating clinicians and custodial staff over extended periods carried considerable evidential weight, supporting conclusions that differed from those drawn during single formal assessment sessions.
- The Supreme Court's finding of fitness did not foreclose the possibility of future unfitness; the judgment acknowledged that mental illness of this kind may fluctuate, making continued assessment and treatment important to the integrity of subsequent proceedings.
Legislation and Cases Referenced
Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases
- R v Presser [1958] VR 45 (Smith J's criteria for fitness to stand trial)
- Ngatayi v The Queen (1980) 147 CLR 1 (High Court approval of Presser criteria)
- Kesavarajah v The Queen (1994) 181 CLR 230 (High Court reaffirmation of Presser criteria)