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Supreme Court 22 September 2017

R v James Va’a Tui

[2017] NSWSC 1366

Homicide
CRIME ACCUSED CHARGED WITH MURDER UNANIMOUS MEDICAL OPINION ACCUSED UNFIT TO BE TRIED

Citation: R v James Va'a Tui [2017] NSWSC 1366
Court: Supreme Court of New South Wales
Date: 22 September 2017
Judge: Lonergan J

Background

The accused was charged with the murder of another person at Shalvey on 16 July 2016. No trial date had been fixed at the time of this hearing. A question arose as to whether the accused was mentally fit to stand trial, prompting a formal inquiry under Part 2 of the Mental Health (Forensic Provisions) Act 1990 (NSW).

Two forensic psychiatrists assessed the accused and prepared reports for the inquiry. Both the Crown and the accused agreed, on the basis of those reports, that the accused did not meet the minimum requirements for fitness to be tried. The proceeding was conducted as an inquiry rather than an adversarial contest, as required by the Act.

The accused had a long and documented history of treatment-resistant schizophrenia, including prior periods as a forensic patient and multiple involuntary admissions to inpatient psychiatric units.

  • Whether the accused met the minimum standards for fitness to be tried as set out in R v Presser [1958] VR 45
  • Whether, if unfit, the accused was likely to become fit within twelve months
  • What orders should follow a finding of unfitness under the Mental Health (Forensic Provisions) Act 1990 (NSW)

Decision

Lonergan J applied the well-established Presser criteria, which require that an accused be able to understand the charge, enter a plea, follow proceedings in a general sense, understand the substantial effect of evidence given against them, and give instructions to counsel about their version of events. The fitness inquiry is determined on the balance of probabilities, with no onus on either party.

Both psychiatrists reported that the accused was actively psychotic at the time of their respective assessments, presenting with severe thought disorder, auditory hallucinations, and delusions including beliefs that microchips had been implanted in his body by God and that the television communicated with him. Dr Adams (retained for the defence) assessed the accused in January 2017 and concluded he could not follow proceedings, instruct his lawyers, or understand the evidence against him. Dr Martin (retained by the Crown) reached materially the same conclusions following an August 2017 assessment and further review of Justice Health records.

Dr Martin also noted that the accused's schizophrenia had been treatment-resistant over many years and that improvement with Clozapine had historically been limited. He concluded it was more likely than not that the accused would not become fit within twelve months. Lonergan J accepted the unanimous psychiatric opinion and found the accused unfit to be tried.

Orders Made

  • The accused was found unfit to be tried for murder.
  • The matter was referred to the Mental Health Review Tribunal under s 14 of the Mental Health (Forensic Provisions) Act 1990 (NSW).
  • The accused was remanded in custody pending the Tribunal's determination under s 16 of the Act.
  • The Supreme Court Registry was directed to provide the Tribunal with copies of the findings, any detention orders, a transcript of the proceedings, and the Crown papers (including both psychiatric reports and the Crown Case Statement).

Key Takeaways

  • The Presser criteria, as approved by the High Court in Ngatayi v R and Kesavarajah v R, remain the applicable standard for determining fitness to be tried in NSW: an accused must be able to understand the charge, follow proceedings, comprehend the effect of evidence, and meaningfully instruct counsel.
  • Fitness is determined on the balance of probabilities, and under the Mental Health (Forensic Provisions) Act 1990 (NSW) neither party bears the onus of proof; the proceeding is conducted by way of inquiry, not adversarial contest.
  • Unanimous expert psychiatric opinion, accepted by both parties, was sufficient to ground a finding of unfitness without contested evidence.
  • Where an accused is found unfit, the Act mandates referral to the Mental Health Review Tribunal and remand in custody pending the Tribunal's determination.
  • A prognosis that the accused is unlikely to become fit within twelve months is a relevant consideration at the inquiry stage, and here that finding rested on the accused's extensively documented history of treatment-resistant schizophrenia with only limited past response to Clozapine.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), Part 2, ss 6, 12(2), 12(3), 14, 14(b)(iii), 16

Cases
- R v Presser [1958] VR 45 (the foundational statement of minimum fitness criteria)
- Ngatayi v R (1980) 147 CLR 1 (High Court approval of Presser)
- Kesavarajah v R (1994) 181 CLR 230 (further High Court approval of Presser)