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Supreme Court 9 March 2012

R v Newbury

[2012] NSWSC 34

Homicide
CRIMINAL LAW PROCEDURE FITNESS TO PLEAD OR BE TRIED CHARGE OF MURDER SUBSTANCE ABUSE ACCUSED UNFIT TO BE TRIED.

Citation: R v Newbury [2012] NSWSC 34
Court: Supreme Court of New South Wales
Date: 9 March 2012
Judge: Davies J

Background

The accused faced a single count of murder under s 18(1)(a) of the Crimes Act 1900, arising from the death of a man at a residential property in Kanwal on 3 August 2010. The deceased had been living with the accused as an informal carer, an arrangement made with the accused's mother. The Crown case disclosed that the deceased died from multiple stab wounds, with DNA evidence and eyewitness accounts linking the accused to the offence.

The accused had a documented history of chronic schizophrenia dating to 1986, as well as a history of poly-substance abuse. His fitness to stand trial was raised as a preliminary matter, prompting Davies J to conduct a formal inquiry under the Mental Health (Forensic Provisions) Act 1990 on 6 February 2012.

  • Whether the accused met the minimum criteria for fitness to be tried, as established by the Presser test
  • Whether his psychiatric condition, specifically chronic schizophrenia and associated cognitive impairment, rendered him unable to understand the proceedings, instruct counsel, or meaningfully engage with the Crown case

Decision

Davies J applied the fitness test drawn from R v Presser [1958] VR 45 and affirmed by the High Court in Ngatayi v R (1980) and Kesavarajah v R (1994). As conveniently tabulated by the NSW Court of Criminal Appeal in Robinson v R [2008], that test requires an accused to be able to understand the charge, plead to it, exercise rights of challenge, follow proceedings, comprehend the effect of evidence, and give instructions to counsel.

The court received psychiatric evidence from Professor David Greenberg, who examined the accused in December 2010 and again in October 2011. At the time of the first examination, the accused was overtly psychotic, formally thought-disordered, and unable to respond to questions in a meaningful way. He laughed inappropriately, gave rambling and incoherent answers, and demonstrated no understanding of the charge, the court process, or the role of legal representatives. Professor Greenberg concluded on the balance of probabilities that the accused was unfit to stand trial.

A further psychiatric report, apparently from Dr Nielssen (referenced in the judgment), and observations from the accused's solicitor of over 20 years' criminal law experience, supported that conclusion. The solicitor had visited the accused on multiple occasions and found him unable to understand the Crown case or sustain a meaningful conversation during interviews, consistently leaving before interviews concluded.

Davies J accepted the expert and lay evidence and found on the balance of probabilities that the accused was unfit to be tried for murder.

Orders Made

  • The accused was found unfit to be tried for the murder of the deceased on 3 August 2010.
  • 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 Court Registry was directed to provide the Tribunal with copies of the finding, any detention or bail orders, the transcript, all psychiatric reports, and the Crown Case Statement.

Key Takeaways

  • The Presser test, affirmed by the High Court in Ngatayi and Kesavarajah, remains the governing standard for fitness to be tried in NSW, requiring an accused to satisfy a range of minimum cognitive and communicative capacities.
  • Chronic schizophrenia combined with poly-substance abuse, when producing active psychosis and severe thought disorder, can satisfy the threshold for a finding of unfitness on the balance of probabilities.
  • Findings of unfitness are not permanent determinations: upon referral, the Mental Health Review Tribunal assesses what should happen next, including whether the accused may become fit within a defined period.
  • Observations from an accused's own legal representative, where they speak to a sustained inability to give instructions or follow proceedings, can carry evidential weight alongside formal psychiatric assessments.
  • Under the Mental Health (Forensic Provisions) Act 1990, a court finding an accused unfit to be tried must refer the matter to the Mental Health Review Tribunal and remand the accused pending that body's determination.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18(1)(a)
- Mental Health Act 2007 (NSW)
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 14, 16

Cases
- R v Presser [1958] VR 45
- Ngatayi v R (1980) 147 CLR 18
- Kesavarajah v R (1994) 181 CLR 230
- Robinson v R [2008] NSWCCA 64