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Supreme Court 29 October 2015

R v Adam Keith WATT

[2015] NSWSC 1614

HomicideFirearms & weapons
FITNESS TO BE TRIED CONSPIRACY TO MURDER COGNITIVE IMPAIRMENT NO NEED TO CONTINUE WITH INQUIRY.

Citation: R v Adam Keith Watt [2015] NSWSC 1614
Court: Supreme Court of New South Wales
Date: 29 October 2015
Judge: Beech-Jones J

Background

The accused faced a charge of conspiracy to murder, along with an alternative charge of unauthorised possession of a firearm. The Crown alleged that, between January and April 2011, he assisted a co-conspirator in sourcing a firearm intended for use in the killing of a person who had previously given evidence against that co-conspirator.

The accused had suffered a serious assault while on remand as a prisoner between 2008 and 2009, which left him with a cognitive impairment. That impairment had previously led Price J, in 2012, to find him unfit to stand trial on separate, complex drug conspiracy charges. The anticipated length and complexity of those earlier proceedings were central to that conclusion.

Before arraignment on the current charges, Johnson J directed that a fresh fitness inquiry be conducted under the Mental (Forensic Provisions) Act 1990. That inquiry came before Beech-Jones J on 29 October 2015.

  • Whether the accused satisfied the fitness criteria established in R v Presser [1958] VR 45, meaning he had sufficient capacity to understand and participate meaningfully in his trial
  • Whether, in light of updated medical evidence and the Crown's decision to proceed by way of a separate, shorter indictment, there was "no longer any need" to continue with the fitness inquiry under s 10(1)(a) of the Mental (Forensic Provisions) Act 1990

Decision

Three expert reports were before the court. Dr Olav Nielssen, a psychiatrist who had previously found the accused unfit in the 2012 proceedings, reported in August 2015 that the accused had made a "remarkable recovery" since that time, which Dr Nielssen attributed to above-average premorbid intelligence and active rehabilitation. He concluded the accused was now fit to stand trial.

A joint report from Dr Susan Pulman and Amanda White, forensic psychologists, expressed concern about the accused's ability to participate in a trial of six to eight weeks' duration but indicated greater confidence in his capacity for a shorter proceeding. Professor David Greenberg similarly concluded the accused was fit to stand trial, on the condition that certain accommodations were made: access to a laptop or written materials during proceedings, regular breaks every 60 to 90 minutes, morning or early-afternoon sittings to manage mental fatigue, and ongoing assistance from his solicitor in summarising evidence and legal terminology.

The Crown responded to these concerns by filing a stand-alone indictment against the accused, separating his trial from the more complex multi-accused proceedings. Both parties agreed this approach addressed the experts' reservations and jointly submitted that no further inquiry was necessary. Beech-Jones J accepted that position after reviewing the medical material independently. His Honour was satisfied that, on the basis of the separate and shorter trial the Crown now proposed, there was no live issue about the accused's fitness under the Presser criteria. His Honour noted, however, that if the nature or anticipated length of the trial changed materially, the question of fitness may need to be revisited.

Orders Made

  • The fitness inquiry was determined to be no longer necessary and was discontinued.
  • Proceedings were adjourned to the Arraignment List on 4 December 2015.

Key Takeaways

  • A finding of unfitness in earlier proceedings does not permanently resolve the question: fitness is assessed at the time of trial, and a prior finding of unfitness can be revisited if circumstances change materially.
  • The Supreme Court confirmed that, where all parties agree there is no longer a need for a fitness inquiry and the court is independently satisfied on the medical evidence, the court may determine under s 10(1)(a) of the Mental (Forensic Provisions) Act 1990 that the inquiry need not proceed.
  • The Presser criteria remain the operative standard for fitness to stand trial in New South Wales, requiring the accused to have sufficient capacity to understand the proceedings and participate meaningfully in their own defence.
  • Structural adjustments to proceedings, such as separating a complex multi-accused trial into a shorter standalone matter, can directly affect a fitness assessment where cognitive impairment is the relevant concern.
  • Fitness determinations remain contingent: Beech-Jones J expressly noted that any material change to the trial's anticipated nature or length could require the fitness question to be revisited.

Legislation and Cases Referenced

Legislation:
- Mental (Forensic Provisions) Act 1990 (NSW), ss 8, 10(1)(a)
- Crimes Act 1914 (Cth), Division 6 of Part IB

Cases:
- R v Presser [1958] VR 45 (the foundational authority setting out the minimum standards an accused must meet to be fit for trial)
- R v Watt [2012] NSWSC 1574 (earlier proceedings in which Price J found the accused unfit to stand trial on drug conspiracy charges)
- R v Watt [2013] NSWSC 1896 (Price J's determination of the accused's fate on the drug charges following the unfitness finding)