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Supreme Court 4 November 2013

R v Haines

[2013] NSWSC 1609

Homicide
CRIMINAL LAW PROCEDURE FITNESS TO PLEAD MURDER FIT TO BE TRIED

Citation: R v Haines [2013] NSWSC 1609
Court: Supreme Court of New South Wales
Date: 4 November 2013
Judge: Price J

Background

The accused was charged with the murder of a grocery store owner at Redfern on 3 March 2001. The Crown alleged she was seen armed with a knife at the scene, left with what appeared to be blood on her clothing, and made admissions to the stabbing recorded on a listening device placed in her cell.

A fitness inquiry in February 2003 found the accused unfit to stand trial, and she was referred to the Mental Health Review Tribunal. A special hearing followed in June 2004, at which a jury found she had committed the murder. The accused was sentenced by Miles AJ to a limiting term of 17 years commencing 3 March 2001. A limiting term is the maximum custodial period that applies where an accused is found not guilty on grounds of mental illness or is otherwise dealt with under the forensic provisions regime, rather than receiving a conventional sentence.

In April 2013, the Mental Health Review Tribunal formed the opinion that the accused had become fit to be tried. The Director of Public Prosecutions elected to proceed with the murder charge, which obliged the Supreme Court to hold a further fitness inquiry under the Mental Health (Forensic Provisions) Act 1990.

  • Whether the accused now met the fitness criteria established in R v Presser [1958] VR 45, having previously been found unfit to stand trial
  • How the complexity and anticipated length of the trial bore on the fitness assessment
  • How to resolve a reservation raised by one expert regarding the accused's drowsiness and alertness

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 proceedings, follow what is happening in court, comprehend the substantial effect of evidence adduced against them, and give instructions to their counsel. These criteria have been endorsed by the High Court in Ngatayi v The Queen (1980) 147 CLR 1 and Kesavarajah v The Queen (1994) 181 CLR 230. Under the Mental Health (Forensic Provisions) Act, fitness is determined by a judge alone, on the balance of probabilities, with neither party bearing the onus.

Five expert reports were before the court. Forensic psychiatrist Dr Michael Giuffrida (jointly with a clinical psychologist and separately with a psychiatry registrar) and forensic psychiatrist Dr Stephen Allnutt each assessed the accused and concluded she met the Presser criteria. The accused, then 47, carried diagnoses of schizoaffective disorder, alcohol abuse, polysubstance dependence, antisocial and borderline personality traits, and developmental disability. Despite her cognitive ability being assessed as well below average, the experts considered she could participate in the legal process with appropriate accommodations.

Dr Allnutt raised one reservation about the accused's drowsiness during assessment. Price J found that Dr Giuffrida's supplementary report addressed that reservation satisfactorily, and accepted the opinions of all psychiatrists. The court noted that the expected two-week trial involved factual issues that were not complex, a factor relevant to the fitness assessment. Both the Crown and defence counsel agreed the accused was fit.

Orders Made

  • The accused was found fit to be tried for the murder on 3 March 2001 at Redfern.
  • The matter was placed in the arraignment list for 6 December 2013, in accordance with s 30 of the Mental Health (Forensic Provisions) Act 1990.
  • Bail was refused.
  • The accused was directed to be returned to the Bunya Unit at Cumberland Hospital and to remain under the care of staff at that unit.

The court also made recommendations (not formal orders) that the accused's medication be regulated appropriately during trial, that breaks be provided when necessary, and that the accommodations suggested by Dr Giuffrida and the clinical psychologist be taken into account throughout the proceedings.

Key Takeaways

  • A prior finding of unfitness does not permanently foreclose trial. Under the Mental Health (Forensic Provisions) Act 1990, if the Mental Health Review Tribunal later forms the view that an accused has become fit, and the Director of Public Prosecutions elects to proceed, the court must hold a further fitness inquiry.
  • The Presser criteria remain the applicable test for fitness to stand trial for State offences in New South Wales, and require an assessment of the accused's practical capacity to understand, follow, and participate in proceedings rather than any high level of legal knowledge or cognitive ability.
  • Where expert evidence is largely consistent but one clinician raises a specific reservation, a supplementary report from another expert directly addressing that reservation can be sufficient to resolve the issue and allow the court to accept the combined weight of psychiatric opinion.
  • Anticipated trial length and factual complexity are relevant considerations in a fitness inquiry. A shorter, less complex trial may support a finding of fitness where an accused has borderline capacity.
  • Under s 11 of the Mental Health (Forensic Provisions) Act 1990, fitness is determined by a judge alone on the balance of probabilities, with neither party bearing the onus of proof.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 6, 8, 10, 11, 12, 29(1)(b), 30, 47
- Crimes (Administration of Sentences) Act 1999 (NSW)

Cases
- R v Presser [1958] VR 45
- Ngatayi v The Queen (1980) 147 CLR 1
- Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230