Citation: R v Waszczuk [2012] NSWSC 380
Court: Supreme Court of New South Wales
Date: 4 May 2012
Judge: Davies J
Background
The accused was charged with the murder of his father, whom he killed by stabbing in May 2009. He had a pre-existing diagnosis of schizophrenia and had been committed to a mental health institution on two occasions before the offence. After initially pleading guilty, concerns arose during the sentence hearing before Hulme J about whether he was in fact fit to plead.
Hulme J conducted a fitness enquiry under the Mental Health (Forensic Provisions) Act 1990 and found the accused unfit to be tried in March 2011. The Mental Health Review Tribunal subsequently conducted two separate reviews (in June and December 2011) and on each occasion found the accused fit to be tried. That disagreement between the Tribunal's findings and the earlier Supreme Court determination triggered this further enquiry before Davies J under s 29 of the Act.
By the time of the further enquiry, the accused had withdrawn instructions from his solicitors and appeared for himself. Two psychiatrists, Dr Westmore and Professor Greenberg, provided updated reports and gave concurrent evidence.
Legal Issues
- Whether the accused remained unfit to be tried, given the statutory presumption of continued unfitness following the earlier finding by Hulme J
- Whether the accused satisfied the Presser criteria, specifically the requirement that he be able to make his defence and communicate his version of the facts to counsel and the court
- What weight should be given to the Mental Health Review Tribunal's two findings of fitness, where those findings appeared to conflict with the Supreme Court's prior determination
- How the court should approach conflicting psychiatric evidence on the question of fitness
Decision
Davies J confirmed that the presumption of unfitness under s 15 of the Act continued to operate, because the original finding was made under Part 2 of the Act by Hulme J. The Tribunal's reviews were conducted under a different part of the Act and did not displace that presumption. The burden therefore rested on establishing fitness on the balance of probabilities.
Both psychiatrists agreed the accused was acutely mentally ill, suffering from active schizophrenia that was either treatment-resistant or aggravated by non-compliance with medication. They also agreed he met most of the Presser fitness criteria. The dispute between them centred on whether he could communicate his version of events and instruct counsel effectively.
Professor Greenberg maintained the accused was unfit, pointing to evidence of formal thought disorder revealed in a letter the accused had written. Professor Greenberg's view was that the accused's apparent verbal coherence masked underlying thought confusion, and that without genuine insight into his mental illness, he could not properly engage with a defence. Dr Westmore considered the accused likely fit on the basis that he could give instructions verbally, even if not in written form, though he acknowledged significant uncertainty and reserved a degree of the assessment to legal judgment.
Davies J preferred Professor Greenberg's evidence on the critical issue. The accused's lack of insight into his mental illness, combined with formal thought disorder evident in his written communication, meant he could not adequately make his defence or communicate his version of the facts. Davies J also noted that the Tribunal's December 2011 determination appeared to have been reached without consideration of Professor Greenberg's report or the reasoning of Hulme J, and expressed concern that the matter would cycle unproductively between the Court and the Tribunal unless the Tribunal engaged directly with the basis for the Court's findings.
Orders Made
- The accused was found unfit to be tried for the offence of murder.
- The matter was referred to the Mental Health Review Tribunal in accordance with 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 the Act.
- The Court Registry was directed to provide the Tribunal with a copy of the finding, any orders as to detention or bail, a transcript of proceedings, all psychiatric reports tendered, the Crown Case Statement, and other exhibits from the enquiry.
Key Takeaways
- The presumption of continued unfitness under s 15 of the Mental Health (Forensic Provisions) Act 1990 applies where a finding of unfitness has been made under Part 2, and Tribunal reviews conducted under a different part of the Act do not displace that presumption.
- A person may appear verbally coherent and meet most Presser criteria while still being unfit, where underlying formal thought disorder, revealed in other contexts, undermines the capacity to communicate a version of facts and instruct counsel meaningfully.
- Lack of insight into a diagnosed mental illness can itself be a material factor in assessing whether an accused meets the Presser requirement to make a defence known to counsel and the court.
- Where conflicting psychiatric evidence exists on fitness, the court must weigh that evidence itself and is not bound by Tribunal findings, though those findings remain relevant material.
- Davies J expressly flagged that Tribunal reviews should engage directly with the reasoning underlying a Supreme Court finding of unfitness, to avoid the matter bouncing indefinitely between the Court and the Tribunal under ss 29 and 45 of the Act.
Legislation and Cases Referenced
Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 10, 14, 15, 16, 29, 45, 46
Cases
- R v Presser [1958] VR 45 (the foundational statement of fitness criteria)
- Kesavarajah v R (1994) 181 CLR 230 (High Court consideration of fitness requirements)
- R v Waszczuk [2011] NSWSC 212 (Hulme J's earlier finding of unfitness in this matter)
- Robinson v R [2008] NSWCCA 64