Citation: R v Jake Lewis Andrew [No. 1] [2018] NSWDC 381
Court: District Court of NSW
Date: 24 September 2018
Judge: Haesler SC DCJ
Background
In October 2017, police stopped a bus in Windang after passengers reported a fellow traveller carrying what appeared to be a large firearm. The accused, a 24-year-old man, was found in possession of nine air-operated guns, including two he had fired on the bus. All nine were determined by expert analysis to be firearms within the meaning of the Firearms Act 1987, despite their resemblance to commercially available toy-style products. He held no firearms licence or permit.
The accused was born with 47 XYY syndrome, a chromosomal condition involving an extra Y chromosome that, in his case, caused significant cognitive deficits and learning difficulties. He was assessed as having the mental age of a child, despite his adult physical appearance. Three serious charges were brought on indictment: two counts of firing a firearm in a public place and one count of possessing more than three firearms, at least one of which was a prohibited firearm or pistol.
A question arose as to whether the accused was fit to participate in criminal proceedings. Both prosecution and defence initially anticipated a finding of unfitness, which would have triggered a lengthy referral process through the Mental Health Review Tribunal and ultimately a special hearing. His Honour identified an alternative pathway and expedited a further fitness hearing to examine it.
Legal Issues
- Whether the accused met the minimum fitness criteria established in R v Presser (1948) VR 45 to participate in criminal proceedings.
- Whether fitness to stand trial and fitness to enter a guilty plea can be treated as distinct threshold questions.
- Whether the accused had sufficient cognitive capacity to instruct counsel and enter guilty pleas, even if he lacked the capacity to meaningfully participate in a defended trial.
Decision
His Honour applied the Presser criteria, which set the minimum requirements for a fair trial, including the ability to understand the proceedings, follow the evidence, give appropriate instructions, and present a proper defence. The court noted that the complexity of the proposed proceedings is directly relevant: the more complex the process, the more likely cognitive deficits will impair meaningful participation.
On the evidence before him, including reports from a psychologist (Mr McIntosh) and a forensic psychiatrist (Dr Martin), as well as an affidavit from the instructing solicitor (Ms Black), His Honour found that the accused would not be able to participate in a full defended criminal trial. However, that was not the only question. The court drew a distinction between the capacity needed to contest a trial and the more limited capacity needed to acknowledge guilt and enter guilty pleas.
Dr Martin's reports indicated the accused had a basic awareness of the charges, could understand the concepts of pleading guilty or not guilty, and could confer with his lawyer on that basis. Senior counsel, who had conferred with the accused, gave assurance that the accused did have the capacity to give instructions to enter guilty pleas. The instructing solicitor's affidavit confirmed that, following a lengthy conference, the accused understood the difference between right and wrong, understood he had done something wrong in the eyes of the law, and understood that this meant he was guilty.
His Honour found, on the balance of probabilities, that the accused had sufficient capacity to give instructions through counsel, to provide his version of the facts to his lawyer, and to enter guilty pleas to all counts on the indictment. A finding of fitness to plead was made on that basis. Accordingly, no referral to the Mental Health Review Tribunal was required and the indictment could be presented.
Orders Made
• Jake Andrew is fit to enter guilty pleas on the charges set out in the proposed indictment
• The proceedings can continue
• No referral to the Mental Health Review Tribunal is required
• The Indictment can be presented
Key Takeaways
- The District Court confirmed that the Presser criteria set minimum, not absolute, standards, and must be applied in the context of the actual proceedings contemplated, not criminal proceedings in the abstract.
- Fitness to stand trial and fitness to enter a guilty plea are not the same inquiry. An accused who lacks the capacity to participate in a defended trial may nonetheless have sufficient capacity to enter a guilty plea, provided they can instruct counsel, understand the nature of the charges, and comprehend the difference between guilty and not guilty.
- Where an accused can acknowledge guilt and enter a plea, the sentencing benefits ordinarily available for an early guilty plea, including utilitarian and mitigating considerations, remain available. Those benefits are lost if the matter proceeds through a special hearing following a finding of unfitness.
- Under s 8(2) of the Mental Health (Forensic Provisions) Act 1990, a court may determine that no further inquiry into fitness is required once the accused is found fit to participate in the proceedings as they will actually unfold.
- Air-operated guns firing hydrated gel pellets, despite their toy-like appearance and common retail availability, may constitute firearms within the meaning of the Firearms Act 1987, and possession without a licence or permit may give rise to serious criminal charges.
Legislation and Cases Referenced
Legislation
- Firearms Act 1987 (NSW)
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 8(2), 11(2)
Cases
- R v Presser (1948) VR 45 (the foundational statement of minimum fitness criteria)
- Kesavarajah v The Queen (1994) 181 CLR 230
- Ngatayi v The Queen (1980) 147 CLR 1