Citation: R v Whittall [2016] NSWSC 691
Court: Supreme Court of New South Wales
Date: 30 May 2016
Judge(s): R A Hulme J
Background
The accused was charged with the murder of a man at Gosford on 7 July 2014. No trial date had been fixed at the time of this hearing. A question arose as to whether the accused was mentally fit to face trial for the offence.
The Court conducted a fitness inquiry under Part 2 of the Mental Health (Forensic Provisions) Act 1990 (NSW). Both the prosecution and the defence participated, and five psychiatric reports from two forensic psychiatrists were tendered without objection.
The anticipated trial was expected to run for three to four weeks. The issues likely to arise at trial included whether the accused should be found not guilty on grounds of mental illness, and whether the partial defence of substantial impairment by abnormality of mind could be established.
Legal Issues
- Whether the accused met the fitness criteria established in R v Presser, which requires that a defendant have sufficient capacity to understand the proceedings, instruct counsel, and make a defence.
- Whether the concerns raised in Kesavarajah v R were engaged, specifically whether fluctuations in the accused's mental state would severely interrupt the trial process.
Decision
Hulme J applied the well-established fitness criteria from R v Presser [1958] VR 45, which require an accused to be able to understand the proceedings, follow what is happening in court, and give adequate instructions to their legal representative. The Court also considered the separate Kesavarajah question of whether mental state fluctuations would disrupt the trial.
Two forensic psychiatrists, one engaged by the defence and one by the prosecution, provided a total of five reports spanning assessments between April 2015 and May 2016. Although one earlier report from the defence psychiatrist found the accused fit, both psychiatrists ultimately concluded by the time of their most recent assessments that she remained unfit. The defence psychiatrist's final view was that the accused's mental state, characterised by significant week-to-week fluctuations, raised concerns about her ability to follow proceedings and give genuine instructions. He also noted that the accused appeared to be presenting as better than she actually was, heightening those concerns.
The prosecution psychiatrist diagnosed the accused with Bipolar Affective Disorder, then in a manic phase, with a differential diagnosis of Schizoaffective Disorder. Despite some improvement following a medication change, he concluded she remained unfit due to ongoing elevation, irritability, and vulnerability in stress management. Both psychiatrists were optimistic that further treatment could render her fit within twelve months.
Both the Crown and the defence accepted that the unanimous medical evidence supported a finding of unfitness. Hulme J agreed, describing the concession as fair and soundly based, and formally found the accused unfit to be tried.
Orders Made
- The accused was found unfit to be tried for the offence of murder, pursuant to s 14 of the Mental Health (Forensic Provisions) Act 1990.
- The matter was referred to the Mental Health Review Tribunal.
- The accused was remanded in custody pending further orders of the Court.
- The registry was directed to provide specified documents to the Mental Health Review Tribunal, including the judgment, tendered exhibits, the indictment, the Crown Case Statement, and the Crown's written submissions.
Key Takeaways
- The fitness standard from R v Presser requires more than a surface-level ability to communicate: the accused must be able to genuinely follow proceedings, give meaningful instructions, and engage with their defence without their mental state undermining those capacities.
- Where a defendant's mental state fluctuates significantly from week to week, the Kesavarajah question of whether that instability would interrupt a lengthy trial becomes an independent basis for concern about fitness.
- Unanimous psychiatric opinion from experts retained by opposing parties carried significant weight. The Supreme Court accepted both the Crown's concession and the defence's agreement that the evidence compelled a finding of unfitness.
- An accused's apparent motivation to appear fit, such as expressing a desire not to let their solicitor down, can itself be a factor psychiatrists weigh when assessing whether the person is presenting a reliable picture of their mental state.
- Under s 14 of the Mental Health (Forensic Provisions) Act 1990, a finding of unfitness triggers referral to the Mental Health Review Tribunal and requires the Court to address the accused's ongoing custody or detention arrangements.
Legislation and Cases Referenced
Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), Part 2, s 14
Cases
- R v Presser [1958] VR 45
- Kesavarajah v R [1994] HCA 41; 181 CLR 230