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Supreme Court 18 August 2017

R v Ronald Ian Cox

[2017] NSWSC 1097

Homicide
CRIME FITNESS TO STAND TRIAL MURDER CHARGE CONSIDERATION OF THE PRESSER CRITERIA PSYCHIATRISTS AD IDEM ON DIAGNOSIS HELD UNFIT TO BE TRIED

Citation: R v Ronald Ian Cox [2017] NSWSC 1097
Court: Supreme Court of New South Wales
Date: 18 August 2017
Judge: Campbell J

Background

The accused faced a murder charge arising from the death of his friend between 29 April and 3 May 2016 at Sutherland, NSW. The deceased had been discharged from a mental health unit on 29 April 2016 and was last seen alive that afternoon in the accused's company. The accused came to the attention of authorities on 3 May 2016 when he attended Sutherland Hospital in an agitated state and eventually communicated that his friend had died and that he may have been involved. He was subsequently arrested and had been held on remand, receiving treatment at Long Bay Hospital, at the time of the inquiry.

The question of fitness to stand trial was raised before the accused was arraigned. The arraignments judge, Johnson J, directed that a fitness inquiry be held under Part 2 of the Mental Health (Forensic Provisions) Act 1990 (NSW). No plea had been entered.

  • Whether the question of the accused's unfitness to stand trial had been raised in good faith.
  • Whether the accused met the criteria for unfitness to stand trial as established in R v Presser [1958] VR 45 and affirmed by the High Court.

Decision

Campbell J was satisfied that the question of unfitness had been raised in good faith, having regard to ss 11 and 12 of the Mental Health (Forensic Provisions) Act 1990 (NSW).

Both forensic psychiatrists who examined the accused, one retained by the defence and one by the Crown, were in agreement on the diagnosis and its consequences. The accused had been diagnosed with paranoid schizophrenia since at least April 1985, and both psychiatrists classified his condition as treatment-resistant. His clinical records at Sutherland Hospital, spanning admissions since 1984, had accumulated to some eight lever arch folders. Dr Nielssen also identified a likely acquired brain injury from a 1987 motorcycle accident, though he noted it was difficult to separate the neurocognitive effects of chronic schizophrenia from those of organic brain damage. Both experts also identified a chronic substance abuse disorder.

The central finding turned on the accused's marked schizophrenic communication disorder. Dr Nielssen described ambivalent and contradictory answers, vague and often nonsensical speech, and distraction consistent with hallucinations during examination. Dr Adams identified persisting severe symptoms including thought disorder, cognitive impairment and likely auditory hallucinations and delusional beliefs, which he considered would impair the accused's capacity to understand the allegations and follow proceedings. Campbell J noted that the accused's conduct and interjections during the hearing itself were consistent with the psychiatrists' clinical findings. Both experts concluded that the accused was unfit to stand trial, and treatment while in custody had not materially reduced the severity of his symptoms. Applying the Presser criteria, the court found the accused could not adequately follow proceedings, instruct his legal representatives, or provide reliable instructions as to available defences.

Orders Made

  • The accused was found unfit to be tried for murder.
  • Under s 14 of the Mental Health (Forensic Provisions) Act 1990 (NSW), the accused was referred to the Mental Health Review Tribunal for a determination under s 16 of the Act.
  • The accused was remanded in custody pending the Tribunal's determination.
  • The Registrar was directed to provide the Tribunal's Registrar with: a copy of the reasons, findings and orders; the transcript of the proceedings; the Crown case papers (Exhibit A); and the reports of Dr Olav Nielssen (14 January 2017) and Dr Jonathan Adams (16 May and 28 July 2017).

Key Takeaways

  • Campbell J applied the Presser criteria, which require an accused to be able to understand and follow proceedings, instruct counsel, and respond to the charges in a reasonably coherent way, finding the accused unable to meet those standards.
  • Where two eminent forensic psychiatrists are in agreement on both diagnosis and its practical effect on trial capacity, that consensus carries considerable weight in a fitness inquiry.
  • A schizophrenic communication disorder, characterised by ambivalent and contradictory answers and an inability to provide reliable instructions, can independently ground a finding of unfitness, without needing to rely solely on cognitive impairment or the severity of psychotic symptoms.
  • Ongoing treatment in custody does not automatically restore fitness: the court accepted that treatment had not materially reduced the severity of the accused's symptoms.
  • Under the Mental Health (Forensic Provisions) Act 1990 (NSW), a finding of unfitness does not end the matter; the accused is referred to the Mental Health Review Tribunal, which then determines the appropriate course under s 16 of the Act.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 11, 12, 14, 16

Cases
- R v Presser [1958] VR 45
- Ngatayi v The Queen (1980) 147 CLR 1
- Kesavarajah v The Queen (1984) 181 CLR 230