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Supreme Court 29 August 2014

R v Thomas

[2014] NSWSC 1181

Homicide
CRIMINAL LAW WHETHER ACCUSED FIT TO STAND TRIAL ACCUSED NOT FIT

Citation: R v Thomas [2014] NSWSC 1181
Court: Supreme Court of New South Wales
Date: 29 August 2014
Judge(s): Bellew J

Background

The accused faced an indictment alleging that on 31 January 2013 he unlawfully killed the deceased, who was his adopted mother and was suffering from terminal cancer at the time of the incident. The Crown alleged that the accused punched the deceased twice to the face, causing a blunt force head injury from which she died later the same day. An alternative count of recklessly causing grievous bodily harm was also included in the indictment.

Before the accused was arraigned, a question arose as to whether he was fit to stand trial. The accused had a moderate intellectual disability associated with ADHD, Asperger's Syndrome, and Oppositional Defiance Disorder. A formal fitness inquiry was conducted under the Mental Health (Forensic Provisions) Act 1990.

Two forensic psychologists provided competing opinions. Dr Gary Banks, called by the Crown, concluded the accused was fit to stand trial. Dr Susan Pulman, retained on behalf of the accused, concluded he was not. Bellew J was required to resolve that conflict and determine fitness on the balance of probabilities, with no onus of proof resting on either party.

  • Whether the accused was fit to stand trial under the Mental Health (Forensic Provisions) Act 1990
  • How competing expert opinions on fitness should be weighed and resolved
  • Whether the accused met the Presser criteria for fitness, including the capacity to understand the nature of the proceedings, follow the course of the proceedings, and exercise the right to challenge jurors

Decision

Bellew J found the accused unfit to stand trial on the balance of probabilities. The competing expert opinions required careful scrutiny, and the court identified significant problems with the opinion of Dr Banks that diminished its reliability.

A central deficiency in Dr Banks' opinion concerned his misapplication of one of the relevant fitness criteria. The "right of challenge" in the Presser criteria refers to an accused person's ability to challenge prospective jurors. Dr Banks incorrectly understood it as referring to the capacity to challenge evidence. Because his assessment was built on that misunderstanding, his conclusion on that criterion could not stand.

The court also found that Dr Banks had relied on factual history that was, in material respects, inaccurate. The accused's father gave oral evidence correcting a number of details, including the accused's age at adoption and the age of a sibling at adoption. These inaccuracies undermined the foundation of Dr Banks' assessment. Additionally, Dr Banks himself acknowledged a degree of uncertainty as to whether the accused genuinely understood questions put to him, as distinct from simply answering them.

By contrast, Dr Pulman's opinion was found to be properly grounded and correctly applied the relevant criteria. Her conclusion that the accused would "struggle" with understanding the right to challenge jurors was consistent with the accused's demonstrated lack of understanding of the jury's role. Bellew J was satisfied that the accused lacked the ability to understand the nature of the proceedings, to follow their course, and was at the very least severely compromised in his capacity to understand and exercise his right of challenge.

Orders Made

  • The accused was found unfit to stand trial.
  • The accused was referred to the Mental Health Review Tribunal pursuant to section 14 of the Mental Health (Forensic Provisions) Act 1990.
  • The accused was remanded in custody until effect was given to any determination made by the Mental Health Review Tribunal.
  • The Registrar was directed to provide the Mental Health Review Tribunal with copies of all exhibits tendered in the proceedings together with a copy of the reasons for judgment.

Key Takeaways

  • The Supreme Court confirmed that fitness inquiries under the Mental Health (Forensic Provisions) Act 1990 are determined on the balance of probabilities, with no onus of proof on either party.
  • Where competing expert opinions exist, courts must examine the methodological foundations of each opinion, including whether the expert correctly understood and applied the relevant legal criteria.
  • A misapplication of one of the Presser criteria by an expert witness, such as confusing the right to challenge jurors with the right to challenge evidence, can fatally undermine that expert's overall conclusion on fitness.
  • Factual inaccuracies in the history underpinning an expert's assessment are a legitimate basis for treating that assessment with reduced weight.
  • Under the Presser criteria, an accused person must be able not only to understand the nature of the proceedings but also to follow their course and to understand and exercise the right to challenge potential jurors; significant impairment in any of these areas may render an accused unfit.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 8, 10(2), 11, 14

Cases
- Kesavarajah v R (1994) 181 CLR 231
- R v Presser [1958] VR 45