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District Court 9 March 2017

R v Bartley

[2017] NSWDC 384

Assault & violence
CRIMINAL LAW FITNESS HEARING

Citation: R v Bartley [2017] NSWDC 384
Court: District Court of New South Wales
Date: 9 March 2017
Judge: Berman SC DCJ

Background

The accused was charged with wounding a man with intent to cause grievous bodily harm, with an alternative count of reckless wounding. It was not in dispute that she had stabbed the complainant, nor that she was significantly mentally unwell. Her treating and examining psychiatrists agreed she suffered from either bipolar affective disorder or schizoaffective disorder, with a psychiatric history stretching back to her early teens and multiple hospital admissions.

Before arraignment, a fitness hearing was convened to determine whether the accused was fit to stand trial. The hearing was conducted on a non-adversarial basis, with both the defence and the Crown assisting the court in reaching the correct conclusion on the evidence. No party bore any onus of proof.

Two psychiatrists gave evidence: Dr Allnutt, who expressed a qualified opinion that the accused was fit to be tried, and Associate Professor Dean, who concluded she was unfit. The accused's instructing solicitor also gave evidence about her observations of the accused's behaviour and capacity during consultations.

  • Whether the accused satisfied the Presser test for fitness to stand trial, on the balance of probabilities
  • Whether her apparent inability to rationally consider her plea options (including a plea of not guilty on the grounds of mental illness) rendered her unfit
  • Whether her difficulties in giving consistent instructions to her lawyers rendered her unfit
  • Whether her capacity to follow court proceedings was sufficiently impaired to render her unfit
  • Whether disruptive courtroom behaviour or behaviour flowing from a possible delusional belief is, of itself, a marker of unfitness

Decision

The court noted that the accused clearly satisfied many of the Presser criteria without difficulty. She understood the roles of the judge, jury and lawyers, and could communicate her version of events to her legal team. Her account was that she had been raped by the complainant shortly before the stabbing and acted in self-defence. The psychiatrists considered this belief was likely delusional, but the court noted that a delusional belief, even one relating directly to the subject matter of the trial, does not of itself render an accused unfit.

On the question of following proceedings, the court observed that the accused had interrupted the fitness hearing from the dock in ways that directly responded to evidence being given, demonstrating at least a working capacity to follow what was being said. Both psychiatrists acknowledged she could be difficult to engage and sometimes went off on tangents, but Dr Allnutt considered that with frequent breaks she would be able to participate. The court was satisfied on the balance of probabilities that she could follow the evidence at trial, subject to appropriate arrangements being made, particularly during the complainant's evidence.

On the question of plea and instructions, the court acknowledged the accused had been inconsistent in her instructions and struggled to rationally evaluate a plea of not guilty on the grounds of mental illness. This difficulty was at least partly attributable to her mistaken belief that her mental illness stemmed entirely from the alleged rape, rather than a pre-existing condition. However, the court drew on its earlier decision in R v Holt and on authority from the High Court to note that an inability to rationally decide on that particular plea option did not make her unfit, because a not guilty on the grounds of mental illness verdict could still be raised by the Crown, the judge, or her own lawyers regardless of her personal instructions on that point.

The court acknowledged the expert disagreement and the possibility that the accused's mental state could deteriorate, particularly under the stress of a trial. It noted that a future trial judge would be obliged to conduct a further fitness hearing if circumstances changed. On the material before the court, and based on the accused's presentation during the two-day hearing, the court was satisfied on the balance of probabilities that she was fit to be tried.

Orders Made

• Ms Bartley is fit to be tried

Key Takeaways

  • The District Court confirmed that disruptive courtroom behaviour, even behaviour arising from a mental disorder, does not of itself render an accused unfit to stand trial. This principle, drawn from the High Court's endorsement of the Ontario Court of Appeal in R v Taylor, applied directly to the accused's interruptions during the fitness hearing itself.

  • A delusional belief, including one that directly concerns the subject matter of the trial, does not automatically produce unfitness. The court applied this principle in finding that the accused's likely delusional belief about the complainant did not prevent her from being tried.

  • Where an accused cannot rationally instruct her lawyers on a plea of not guilty on the grounds of mental illness, that incapacity does not necessarily produce unfitness if that verdict remains available to be raised by other parties during trial.

  • Fitness is assessed on the balance of probabilities at the time of the hearing, not by reference to hypothetical future deterioration. However, the court noted that a finding of fitness is not permanent, and a trial judge remains obliged to conduct a fresh fitness hearing if circumstances change during the proceedings.

  • Conflicting expert psychiatric opinions do not prevent a court from reaching its own conclusion on fitness. The District Court here preferred elements of both experts' evidence and reached a conclusion that differed from one of the two psychiatrists, drawing also on its own direct observation of the accused during the hearing.

Legislation and Cases Referenced

Cases:
- Eastman v R (2000) 203 CLR 1 (particularly at [25]-[26], per Gleeson CJ)
- R v Taylor (1992) 77 Canadian Criminal Cases (3rd) 551 (Ontario Court of Appeal)
- R v Holt [2009] NSWDC 147

Tests and Principles:
- The Presser test for fitness to stand trial (derived from R v Presser [1958] VR 45), which sets out the minimum capacities an accused must have to be fit to be tried