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Supreme Court 21 June 2013

R v Weazel

[2013] NSWSC 856

Homicide
CRIMINAL LAW MURDER UNFITNESS TO BE TRIED

Citation: R v Weazel [2013] NSWSC 856
Court: Supreme Court of New South Wales
Date: 21 June 2013
Judge(s): Adams J

Background

The accused was charged with the murder of his de facto partner, allegedly occurring on 27 July 2011 near Mount Druitt and Redfern. The Crown's case was circumstantial, relying on a history of alleged violence inflicted over several hours, and was complicated by the fact that both the accused and the deceased were heavily intoxicated at the relevant time.

Before the accused was formally arraigned, his counsel raised a preliminary question as to his fitness to stand trial. The matter was accordingly listed for a fitness inquiry under the Mental Health (Forensic Provisions) Act 1990 (NSW).

The accused had been examined by two forensic psychiatrists, a psychologist, and a neuropsychologist, all of whom produced reports that were tendered by agreement. Notably, both the Crown and defence counsel accepted that the reports demonstrated unfitness, though the court noted that fitness cannot be determined by consent.

  • Whether the accused was unfit to be tried for the offence of murder, within the meaning of the Mental Health (Forensic Provisions) Act 1990 (NSW)
  • Whether the minimum cognitive and comprehension standards identified in R v Presser [1958] VR 45 were satisfied
  • What orders the court was required to make upon a finding of unfitness

Decision

Adams J applied the well-established Presser test, which identifies minimum standards an accused must meet to be tried without unfairness or injustice. Those standards include the ability to understand the charge and its elements, to follow the proceedings in a general sense, to understand the substantial effect of evidence, and to give instructions to counsel including a version of the relevant facts.

His Honour noted that mere amnesia or confusion about the events in question does not automatically render an accused unfit. The more significant inquiry concerns the accused's understanding of the trial process itself, including the roles of counsel, judge, and jury.

On the evidence, Adams J accepted the expert findings that the accused suffered from significant cognitive impairment and memory loss. One psychiatrist expressed the opinion that the accused was incapable of giving proper instructions to his solicitors or adequately understanding the evidence against him, and would be unable to follow court proceedings. The prognosis was that, even if the accused remained abstinent from alcohol, improvement sufficient to achieve fitness was not expected within the next twelve months or the foreseeable future.

Accordingly, the court found the accused unfit to stand trial and proceeded to make the orders required under s 14 of the Act.

Orders Made

  • The matter was referred to the Mental Health Review Tribunal in accordance with s 14(a) 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, in accordance with s 14(b)(iii)
  • The Registrar was directed to provide the Mental Health Review Tribunal, within 14 days, with copies of the judgment, the orders, the transcript, the psychiatric reports, and the Crown case statement

Key Takeaways

  • The Presser test sets out minimum standards for fitness to stand trial, but Adams J reaffirmed that it must be applied "in a reasonable and commonsense fashion" rather than as a rigid legislative checklist.
  • Amnesia or confusion about the events charged, even where caused by brain damage or a psychiatric condition, does not automatically establish unfitness; the central inquiry is whether the accused can comprehend the trial process itself and meaningfully participate in it.
  • Under s 12 of the Mental Health (Forensic Provisions) Act 1990, a fitness inquiry is non-adversarial and the onus of proof does not rest on any particular party.
  • A finding of unfitness cannot be made by consent of the parties: the court retains an independent obligation to assess the evidence and reach its own conclusion.
  • Upon a finding of unfitness, s 14 of the Act obliges the court to refer the accused to the Mental Health Review Tribunal, leaving further decisions about the accused's status to that body.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 8, 10, 11, 12, 14, 16
- Bail Act 1978 (NSW) (referenced within s 10(3)(b))

Cases
- R v Presser [1958] VR 45 (Smith J) — the foundational authority on the minimum standards required for fitness to stand trial