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Supreme Court 9 November 2016

R v Blackman

[2016] NSWSC 1579

Homicide
CRIMINAL LAW MURDER FITNESS INQUIRY FITNESS TO BE TRIED PRESSER AND KESAVARAJAH PRINCIPLES ACCUSED UNFIT TO BE TRIED

Citation: R v Blackman [2016] NSWSC 1579
Court: Supreme Court of New South Wales
Date: 9 November 2016
Judge(s): Schmidt J

Background

The accused faced charges of murder, unlawful killing, and causing grievous bodily harm with intent, arising from the death of his partner at a rural property in Tomewin between 2 and 6 April 2014. The deceased's body was found in a shed on the property. The accused had been found in the same shed, naked, emaciated, and in severe physical distress, and was taken to hospital by ambulance.

In hospital, the accused made a number of incriminating statements to police, family members, and hospital staff. He later retracted those admissions and attributed responsibility for the death to another person. His mental and physical condition deteriorated significantly in custody, prompting psychiatric and psychological review over an extended period.

Shortly before a six-week trial was due to commence in May 2016, a question arose as to the accused's fitness to stand trial. The hearing was vacated and a formal fitness inquiry was conducted under the Mental Health (Forensic Provisions) Act 1990 (NSW).

  • Whether the accused met the fitness standard established in R v Presser [1958] VR 45, including his capacity to follow proceedings, understand the evidence against him, and give meaningful instructions to counsel
  • Whether, applying Kesavarajah v the Queen (1994) 181 CLR 230, the accused's condition was likely to remain stable enough throughout a lengthy trial to make proceeding appropriate
  • What orders should follow from a finding of unfitness under s 14 of the Mental Health (Forensic Provisions) Act 1990 (NSW)

Decision

Schmidt J conducted the inquiry on the balance of probabilities, consistent with s 6 of the Act. The inquiry was non-adversarial, with no onus resting on any particular party. All parties accepted the expert evidence and supported a finding of unfitness.

Multiple forensic experts, including two psychiatrists and two psychologists, examined the accused. Their reports, together with MRI imaging of the accused's brain, established that he had suffered brain damage and was experiencing mental disorders attributable at least in part to long-term alcohol abuse. The experts commonly found that his capacity was significantly diminished and that his prospects of improvement were limited.

Schmidt J accepted those expert conclusions. Although the accused had sufficient capacity to enter a plea of not guilty, her Honour found he could not, at trial, follow the course of proceedings, adequately understand the substantial effect of evidence given against him, or give meaningful instructions to counsel so as to make his defence. The Kesavarajah principle reinforced this conclusion: there was no utility in commencing a lengthy trial where the accused's condition made it likely to be interrupted or rendered futile.

Accordingly, the accused was found unfit to be tried.

Orders Made

  • The accused was found currently unfit to be tried for the charges of murder, unlawful killing, and causing grievous bodily harm with intent.
  • The accused was referred to the Mental Health Review Tribunal.
  • The accused was remanded in custody pending further orders of the Court.
  • The Registrar was directed to provide the Tribunal with a copy of the judgment, the orders, and all exhibits tendered in the inquiry.

Key Takeaways

  • The Presser test requires that an accused be able to follow proceedings, understand the substantial effect of evidence against them, and communicate a defence to counsel. Falling short of those standards on the balance of probabilities results in a finding of unfitness.
  • Applying Kesavarajah, fitness must be assessed with reference to the likely duration and demands of the trial, not merely the accused's condition at its commencement. A debilitating condition that is unlikely to remain stable throughout a lengthy trial can ground an unfitness finding.
  • Brain damage and psychiatric disorders arising from long-term alcohol abuse, supported by consistent expert opinion and neuroimaging, can satisfy the evidentiary threshold for a finding of unfitness.
  • Under s 14 of the Mental Health (Forensic Provisions) Act 1990 (NSW), a finding of unfitness ordinarily results in referral to the Mental Health Review Tribunal while the accused remains in custody pending further court orders.
  • Capacity to enter a plea is a lower threshold than full fitness to stand trial. The Supreme Court confirmed that the accused's ability to plead not guilty did not preclude an unfitness finding in relation to the full conduct of the proceedings.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 6, 9, 12, 14
- Crimes Act 1900 (NSW), ss 18(1)(b), 33(1)(b)

Cases
- R v Presser [1958] VR 45
- Kesavarajah v the Queen (1994) 181 CLR 230; [1994] HCA 41