Citation: [2017] NSWDC 105
Court: District Court of NSW
Date: 16 May 2017
Judge(s): Mahony SC DCJ
Background
The accused faced an indictment containing eight counts of historical sexual offences allegedly committed against two child victims in the 1980s. The charges related to conduct alleged to have occurred between 1982 and 1988, when the victims were children. The proceedings were subject to a suppression order protecting the identities of both victims.
Before arraignment, the accused's legal representatives raised a question about his fitness to stand trial. The accused, born in 1963, had left school at year 9 and worked as a labourer for many years before receiving a Disability Support Pension. A psychological assessment conducted in 1999 had found him to have a verbal IQ at the 0.5th percentile and a full-scale IQ at the 1st percentile, consistent with mild intellectual disability.
Legal Issues
- Whether the accused was fit to plead to the charges on the indictment
- Whether the accused was fit to stand trial on the indictment
- What orders should follow from the fitness determination under the Mental Health (Forensic Provisions) Act 1990
Decision
Issue 1: The applicable legal framework
Part 2 of the Mental Health (Forensic Provisions) Act 1990 governs fitness inquiries. Because the question was raised before arraignment, the court was required under s 8(1) to determine whether an inquiry should be conducted, and under s 10(1) to conduct that inquiry. The standard of proof is the balance of probabilities (at [7]).
Issue 2: Expert evidence on fitness
Three experts assessed the accused. Dr Seidler, a forensic psychologist, estimated the accused's intellectual functioning in the range of moderate intellectual disability and found him fit to plead but not fit to be tried, given his very limited comprehension of court processes and his likely serious difficulty participating in his defence (at [12]). Dr Reutens, a consultant psychiatrist, diagnosed mild intellectual disability and an adjustment disorder, concluding the accused was incapable of adequately following a trial or instructing his legal representatives (at [13]). Dr O'Dea, a forensic psychiatrist retained by the Crown, agreed the accused could be considered unfit to be tried, noting he would likely have significant difficulties following evidence and giving instructions (at [14]).
Issue 3: Fitness findings
Applying the principles in Kesavarajah v R and R v Presser, the court accepted the unanimous expert opinions. It found that the accused lacked the intellectual capacity to follow the proceedings, to understand the effect of evidence given against him, or to instruct his legal representatives adequately (at [15]). The court therefore found him fit to plead, but not fit to stand trial (at [15]).
Orders Made
- The accused was found presently unfit to be tried
- The accused was referred to the Mental Health Review Tribunal pursuant to s 14(a) of the Mental Health (Forensic Provisions) Act 1990
- Bail was continued on the same conditions as the accused's previous bail, pending determination by the Tribunal
Key Takeaways
- The District Court confirmed that fitness to plead and fitness to stand trial are distinct findings: an accused can be found fit to plead but simultaneously unfit to be tried (at [15]).
- Under the Mental Health (Forensic Provisions) Act 1990, where a fitness question is raised before arraignment, the court must conduct an inquiry and determine fitness on the balance of probabilities (at [7]).
- Applying Kesavarajah v R and R v Presser, the court assessed fitness by reference to whether the accused could follow proceedings, understand evidence given against him, and instruct legal representatives to meet that evidence (at [15]).
- Unanimous agreement among experts, including the Crown's own forensic psychiatrist, was a significant factor in the court's determination that the accused was unfit to stand trial (at [14]-[15]).
- A finding of unfitness to stand trial does not result in the accused being at large: the court referred the matter to the Mental Health Review Tribunal and maintained bail conditions pending the Tribunal's determination (at [16]-[17]).
Legislation and Cases Referenced
Legislation
- Bail Act 2013
- Crimes Act 1900
- Court Suppression and Non-Publication Orders Act 2010
- Mental Health (Forensic Provisions) Act 1990
Cases
- Kesavarajah v R (1984) 181 CLR 230
- R v Presser [1958] VR 45