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Supreme Court 5 December 2016

R v Cahill

[2016] NSWSC 1697

HomicideFirearms & weapons
CRIMINAL LAW MURDER AND RELATED OFFENCES WHETHER ACCUSED FIT TO BE TRIED

Citation: R v Cahill [2016] NSWSC 1697
Court: Supreme Court of New South Wales
Date: 5 December 2016
Judge: Hidden AJ

Background

The accused was committed to the Supreme Court for trial on a charge of murder and two related charges of being armed with an offensive weapon with intent to commit an assault. The Crown alleged that in December 2015, the accused attacked a stranger waiting at a bus stop in Camperdown with a knife, inflicting multiple fatal wounds, and then brandished the knife at bystanders who attempted to intervene. No rational motive for the attack was apparent, and the accused's account of events given to police made little sense.

At the time of the alleged offending, the accused was 29 years old, living in Housing Commission accommodation, receiving a disability support pension, and subject to a Community Treatment Order for mental illness. He was also subject to a Financial Management Order and was described as socially isolated. A separate District Court finding had already determined him unfit to stand trial for an earlier, unrelated robbery charge.

Before the Supreme Court, the sole question was whether the accused was fit to stand trial on the murder and related charges. Both the Crown and defence joined in submitting that he was not.

  • Whether the accused was fit to stand trial on the charge of murder and two charges of being armed with an offensive weapon with intent to commit assault, assessed against the criteria established in R v Presser [1958] VR 45 and affirmed by the High Court in Kesavarajah v R (1994) 181 CLR 230.

Decision

Hidden AJ reviewed reports from three forensic psychiatrists: Dr Richard Furst (who examined the accused on three occasions), Professor David Greenberg, and Dr Adam Martin. All three diagnosed the accused with chronic, treatment-resistant schizophrenia, with onset appearing around 2006. Dr Furst also identified autistic spectrum disorder and borderline intellectual function as related conditions.

On mental state examination, all three experts found the accused demonstrated poverty of thought and limited insight into his illness. Their assessments consistently showed significant impairment in his capacity to understand the trial process, follow proceedings, instruct his lawyers coherently, and appreciate the substantial effect of evidence. Professor Greenberg found the accused lacked even a rudimentary understanding of the effect of court evidence. Dr Furst noted the accused could not explain the roles of key participants in a trial and lacked the capacity to express himself or follow what was said in court. Dr Martin, who conducted the most recent examination, concluded that while the accused had some basic awareness of his charges and the general purpose of court, his ability to communicate with his lawyers and follow proceedings was materially impaired as a direct result of his mental illness.

Further supporting the conclusion, the accused's instructing solicitor, who was described as very experienced in criminal matters, informed the court from the bar table that she had been unable to obtain a coherent account from the accused and did not believe he could participate meaningfully in a trial. The Crown and defence provided joint written submissions that the accused was unfit to be tried, and the court's own examination of the evidence confirmed that conclusion.

Orders Made

  • The accused was found unfit to be tried for murder and the two offences of being armed with an offensive weapon with intent to commit assault, pursuant to s 14 of the Mental Health (Forensic Provisions) Act 1990.
  • The matter was referred to the Mental Health Review Tribunal in accordance with s 14 of that Act.
  • The accused was remanded in custody pursuant to s 14(b)(iii) of the Act, pending further court orders.
  • The Supreme Court registry was directed to provide the Tribunal with a copy of the judgment, the tendered exhibits, the Crown Case Statement, and the parties' written submissions.

Key Takeaways

  • Applying the Presser criteria, as affirmed by the High Court in Kesavarajah, the Supreme Court found that an accused's ability to understand the trial process, follow proceedings, and give coherent instructions to counsel are central to any fitness-to-be-tried determination.
  • Where three independent forensic psychiatrists unanimously conclude that an accused lacks the necessary cognitive and communicative capacity to participate in a trial, and the instructing solicitor cannot obtain coherent instructions, a finding of unfitness is well supported.
  • Chronic, treatment-resistant schizophrenia accompanied by thought disorder, poverty of thought, and limited insight can render an accused unfit to stand trial, even where the accused retains some basic awareness of the charges against them.
  • Under s 14 of the Mental Health (Forensic Provisions) Act 1990, a finding of unfitness triggers referral to the Mental Health Review Tribunal, which then determines the accused's longer-term management, including whether they will become fit within 12 months.
  • A prior unfitness finding in a different proceeding (here, the robbery charge) does not automatically resolve the fitness question in a separate matter; the court must independently assess fitness on the evidence before it.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 14, 16, 19

Cases
- R v Presser [1958] VR 45 (Supreme Court of Victoria, Smith J) -- established the foundational criteria for fitness to stand trial
- Kesavarajah v R (1994) 181 CLR 230 (High Court of Australia) -- affirmed the Presser criteria as the applicable standard