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Supreme Court 28 June 2013

R v Webber

[2013] NSWSC 870

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

Citation: R v Webber [2013] NSWSC 870
Court: Supreme Court of New South Wales
Date: 28 June 2013
Judge(s): Davies J

Background

The accused was charged with the murder of a 24-year-old man at a bus stop on Pittwater Road, Brookvale, on 2 May 2012. The two men were strangers. Witnesses observed the accused stab the deceased in the chest with a large kitchen knife, straddle him, and continue to push the blade further into his chest. The deceased died shortly after arriving at Royal North Shore Hospital.

Following arrest, the accused was remanded in custody and admitted to Long Bay Hospital. The question of his fitness to stand trial was raised, triggering an inquiry under the Mental Health (Forensic Provisions) Act 1990. The inquiry proceeded on the balance of probabilities.

The accused had a significant psychiatric history. Both parents suffered from serious mental illness, and he had been in contact with mental health services since his mid-teens. Two psychiatrists and a solicitor gave evidence regarding his current mental state and capacity.

  • Whether the accused was fit to be tried for murder, assessed against the criteria established in R v Presser [1958] VR 45 and affirmed by the High Court
  • Specifically, whether the accused could understand the charge, follow proceedings, understand evidence given against him, and give instructions to mount a defence

Decision

Davies J applied the Presser criteria, as summarised by RS Hulme J in Robinson v R [2008] NSWCCA 64. Those criteria require an accused to be able to understand the charge, plead to it, exercise the right of challenge, follow proceedings in a general sense, understand the substantial effect of evidence against him, and make or instruct a defence.

Dr Richard Furst, who examined the accused on two occasions, found progressive improvement between June and October 2012. By the second examination, the accused understood the charge and the consequences of different pleas. However, Dr Furst remained of the view that the accused did not sufficiently understand the nature and effects of a potential mental illness defence, and that his capacity to give instructions remained compromised.

Dr Stephen Allnutt examined the accused in March 2013 and reached a similar conclusion: while some improvement was evident, the accused still could not adequately give instructions. His solicitor, Ms Tipper, who had extensive experience in such matters, gave evidence that as of the date of the hearing the accused did not understand how to challenge jurors, did not understand what evidence was, did not understand his defence, and could not give instructions.

Davies J accepted the evidence of all three witnesses. He noted that the accused's condition appeared to have declined between March 2013 and the date of the hearing, consistent with the fluctuating nature of his illness. On the balance of probabilities, the court found the accused unfit to be tried.

Orders Made

  • The accused was found unfit to be tried for the murder of the deceased on 2 May 2012
  • The matter was referred to the Mental Health Review Tribunal pursuant to 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 a copy of the finding, any detention or bail orders, a transcript of the proceedings, psychiatric reports, and the Crown Case Statement

Key Takeaways

  • The Presser criteria, as affirmed by the High Court in Ngatayi v R and Kesavarajah v R, remain the applicable test for fitness to stand trial in New South Wales, assessed on the balance of probabilities under the Mental Health (Forensic Provisions) Act 1990
  • An accused's condition need not be static: this decision illustrates that fluctuating mental illness can result in regression, meaning an accused who showed earlier improvement may nonetheless be found unfit at the time of the inquiry
  • The ability to give instructions and to understand the nature of a potential defence were treated as central considerations in this fitness inquiry, not merely peripheral factors
  • Evidence from a solicitor with practical experience of client communications was accepted alongside psychiatric opinion as relevant to the fitness assessment
  • Where an accused is found unfit, the Mental Health (Forensic Provisions) Act 1990 requires referral to the Mental Health Review Tribunal, with the accused remanded in custody pending that body's determination

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18(1)(A)
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 6, 14, 16

Cases
- R v Presser [1958] VR 45
- Ngatayi v R (1980) 147 CLR 1
- Kesavarajah v R (1994) 181 CLR 230
- Robinson v R [2008] NSWCCA 64