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Supreme Court 27 March 2014

R v Aller

[2014] NSWSC 360

Homicide
CRIMINAL LAW WHETHER ACCUSED UNFIT TO BE TRIED NO ISSUE OF PRINCIPLE.

Citation: R v Aller [2014] NSWSC 360
Court: Supreme Court of New South Wales
Date: 27 March 2014
Judge(s): Garling J

Background

The accused was charged with one count of murder under s 18(1)(a) of the Crimes Act 1900, arising from the death of a woman at Narara on 31 July 2012. The accused had reportedly contacted both his mother and police on the day following the death, effectively disclosing his own involvement. He had been in custody since his arrest.

Before the accused was arraigned, Johnson J ordered in March 2014 that an inquiry be conducted into whether the accused was fit to stand trial, pursuant to s 8 of the Mental Health (Forensic Provisions) Act 1990. Garling J conducted that inquiry on 27 March 2014.

The inquiry proceeded on the basis of a Crown case statement and expert psychiatric evidence from two forensic psychiatrists. Neither party bore an onus of proof, and the inquiry was not conducted in an adversarial manner, as required by the legislation.

  • Whether the accused was unfit to stand trial for murder, to be determined on the balance of probabilities
  • Whether the accused's chronic schizophrenic illness satisfied the minimum criteria for unfitness established in The Queen v Presser [1958] VR 45 and Kesavarajah v R (1994) 181 CLR 230
  • Whether a fair trial could proceed given the accused's current mental state

Decision

Garling J identified the established minimum criteria for fitness to stand trial, drawn from Presser and confirmed by the High Court in Kesavarajah. To be fit, an accused must be able to: understand the charge; enter a plea; exercise the right to challenge jurors; understand the general nature of the proceedings; follow the course of proceedings; understand the substantial effect of evidence given against him; and give counsel sufficient instructions to make a defence.

Two forensic psychiatrists, Dr Richard Furst and Dr Olav Nielssen, each assessed the accused on multiple occasions in 2013 and 2014. Both reached the same conclusion: the accused remained unfit to stand trial. Dr Furst found that the accused was suffering from treatment-resistant psychosis, persistent auditory hallucinations, acute depression, and had made multiple suicide attempts. He concluded that the accused's paranoid thinking would prevent him from rationally deciding on a plea, giving proper instructions, understanding the proceedings, or enduring a trial. Both experts agreed the position was unlikely to change within the following 12 months.

Garling J accepted the opinions of both psychiatrists in full. His Honour acknowledged the competing public and private interests at stake, noting that a finding of unfitness carries serious consequences for an accused, including indefinite incarceration without a jury verdict. Balancing the public interest in bringing serious criminal charges to trial against the accused's right to a fair trial, Garling J was satisfied that a fair trial could not take place because the accused could not understand the proceedings and could not give rational instructions to enable counsel to conduct a proper defence.

The Court was well satisfied on the balance of probabilities that the accused was presently unfit to stand trial, and referred the matter to the Mental Health Review Tribunal accordingly.

Orders Made

  • The accused was found unfit to be tried.
  • 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 the Act.
  • The Registrar of the Supreme Court was directed to provide the Tribunal with copies of the finding and reasons, the orders, the transcript, and the exhibit, within seven days.

Key Takeaways

  • The minimum standards for fitness to stand trial, as set out in Presser and affirmed by the High Court in Kesavarajah, require an accused to be able to understand the charge, follow proceedings, understand the effect of evidence, and give rational instructions to counsel.
  • Fitness inquiries under the Mental Health (Forensic Provisions) Act 1990 are conducted on the balance of probabilities, without an adversarial process and without any onus of proof on either party.
  • Where consistent expert psychiatric evidence establishes that a chronic mental illness prevents an accused from meeting even the minimum Presser criteria, the Supreme Court will find the accused unfit to stand trial even in the context of a serious murder charge.
  • A finding of unfitness does not result in acquittal. The accused is referred to the Mental Health Review Tribunal and remains in custody, which the Court acknowledged represents a serious consequence distinct from the outcome of a criminal trial.
  • The inquiry must be conducted in the context of the particular trial proceedings contemplated. Here, Garling J noted the likely two-week duration of any trial as relevant to assessing the demands placed on the accused.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18(1)(a)
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 6, 8, 11, 12, 14, 16

Cases
- The Queen v Presser [1958] VR 45
- Kesavarajah v R [1994] HCA 41; (1994) 181 CLR 230
- R v Robinson [2008] NSWCCA 64