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Supreme Court 5 July 2013

R v McKellar

[2013] NSWSC 896

Public order & justice offences
CRIMINAL LAW FITNESS TO PLEAD ACCUSED UNFIT TO STAND TRIAL MALINGERING LIMITED COGNITIVE SKILLS ILLITERACY

Citation: R v McKellar [2013] NSWSC 896
Court: Supreme Court of New South Wales
Date: 5 July 2013
Judge(s): Hulme J

Background

The accused faced charges of murder, armed robbery with the infliction of serious bodily harm, and possessing the proceeds of crime, arising from an incident at Bourke in May 2011. He had already been the subject of a fitness inquiry the previous year, in which Latham J found him fit to stand trial: R v McKellar [2012] NSWSC 1567.

In the months following that finding, the accused withdrew instructions from two successive pairs of Legal Aid-funded lawyers and refused to provide instructions to a third. By the time the trial was due to commence in Orange in July 2013, the accused was unrepresented. Legal Aid declined to fund any further assignment, and attempts by the Aboriginal Legal Service to engage with him were also unsuccessful.

Against that backdrop, the Crown Prosecutor raised a fresh question about fitness. Hulme J convened an inquiry under the Mental Health (Forensic Provisions) Act 1990 (NSW), noting that the earlier finding of fitness had been made on the assumption that the accused would be legally represented at trial. That assumption no longer held.

  • Whether the accused remained fit to be tried, given that the prior finding of fitness had proceeded on the assumption he would have legal representation.
  • Whether the accused's refusal to engage with lawyers, combined with his psychiatric condition, limited cognitive ability, and illiteracy, rendered him unfit to stand trial without representation.
  • Whether evidence of possible malingering or exaggeration of symptoms affected the fitness assessment.

Decision

Expert psychiatric evidence before the court included reports from Dr Stephen Allnutt and Dr Lisa Brown, both forensic psychiatrists. Dr Allnutt had initially found the accused unfit to stand trial, identifying schizophrenia with auditory hallucinations and persecutory delusions as impairing his capacity to communicate with lawyers, understand evidence, and conduct a defence. Before Latham J, Dr Allnutt had acknowledged some degree of malingering or symptom exaggeration, but maintained his opinion of unfitness.

Dr Brown had previously supported a finding of fitness, but revised that position after reviewing transcripts of the current proceedings. She concluded she could no longer support a finding of fitness if the accused was to represent himself. She cited his limited cognitive skills in dealing with complex material, his highly aroused emotional state impairing his reasoning, and the conditional nature of his fitness being dependent on having counsel.

Hulme J accepted that the prior fitness finding had been predicated on the accused having legal representation. Without that representation, and given the complexity of the trial evidence, the accused's illiteracy, his mental illness, and his limited cognitive capacity, the position was materially different. The judge expressed confidence that Dr Allnutt would have maintained, and perhaps strengthened, his earlier view of unfitness, and noted that Dr Brown now shared that opinion. Hulme J found the accused unfit to be tried, being satisfied on the balance of probabilities, particularly as to his ability to understand the substantial effect of evidence against him and to make his answer to the charges.

Orders Made

  • The accused was found unfit to be tried.
  • The matter was referred to the Mental Health Review Tribunal under s 14 of the Mental Health (Forensic Provisions) Act 1990 (NSW).
  • The accused was remanded in custody until the Tribunal's determination had been given effect.
  • The court registry was directed to provide the Tribunal with specified documentation, including the judgment, warrant, transcripts from proceedings before both Latham J and Hulme J, relevant exhibits, and the Crown Case Statement.

Key Takeaways

  • A prior finding of fitness to stand trial does not operate as a permanent determination. Where circumstances change, a fresh inquiry can be conducted, and a different conclusion may follow.
  • The Supreme Court held that fitness is context-dependent: a finding made on the assumption of legal representation may not hold where the accused subsequently becomes unrepresented.
  • Where psychiatric evidence acknowledges possible malingering, that does not automatically defeat an unfitness finding. Hulme J accepted unfitness on the balance of probabilities even in the presence of evidence that the accused may have been exaggerating or feigning symptoms.
  • Limited cognitive skills, illiteracy, active mental illness, and the complexity of trial evidence can each individually or collectively bear on fitness, particularly where the accused lacks legal representation to compensate for those deficits.
  • Conducting a fitness inquiry on the contemporaneous opinion of a single expert psychiatrist is unusual, but the court here treated it as sufficient where the broader evidentiary record strongly supported the conclusion.

Legislation and Cases Referenced

Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 8(1), 14

Cases:
- R v McKellar [2012] NSWSC 1567 (Latham J, prior fitness inquiry in this matter)
- R v Presser [1958] VR 45 (implied by reference to the "Presser criteria" for fitness to plead)