Citation: R v JH [2018] NSWDC 65
Court: District Court of NSW
Date: 16 March 2018
Judge(s): Mahony SC DCJ
Background
The accused, a 23-year-old man living with cerebral palsy, ADHD, epilepsy, and depression, faced seven charges arising from an alleged incident on 24 July 2016 in Taree. The charges involved two child complainants and fell across several serious provisions of the Crimes Act 1900, carrying lengthy maximum penalties. Before arraignment, the court determined that a fitness inquiry under the Mental Health (Forensic Provisions) Act 1990 (MHFPA) was warranted.
The inquiry was conducted on 12 March 2018. Three expert reports were tendered: one from Dr Steven Allnutt (forensic psychiatrist), one from Dr Susan Pulman (forensic psychologist and clinical neuropsychologist), and one from Ms Laura Durkin (clinical and forensic psychologist). Dr Allnutt and Dr Pulman both expressed qualified opinions that the accused was fit to stand trial; Ms Durkin concluded he was not.
The Crown ultimately conceded that its experts' opinions were qualified and that the fitness question might need to be revisited during any trial. The accused's counsel submitted that proper instructions could not be obtained on each of the seven separate counts.
Legal Issues
- Whether the accused was fit to stand trial under the MHFPA, assessed against the criteria established in R v Presser (1958) and confirmed by the High Court in R v Kesavarah (1994)
- Whether the accused had sufficient understanding of the charges, the trial process, and his own role in instructing counsel to mount a defence
Decision
Applicable legal framework: Under s 11 of the MHFPA, fitness is determined by a judge alone, and the inquiry is not conducted in an adversarial manner with no onus on any particular party (at [3]). The Presser criteria require that the accused understand the nature of the charges and proceedings, follow the course of the trial, understand the substantial effect of the evidence, and be able to participate in the proceedings to protect his own interests (at [30]-[31]).
Findings on cognitive and medical status: The court was satisfied that the accused suffered from cerebral palsy, epilepsy, ADHD, and depression, with a cognitive impairment that could not be accurately assessed. His verbal comprehension placed him at the third percentile of the general population, meaning 97% of people score at or above his level (at [33]).
Findings on the Presser criteria: The court found that the accused had only a very general understanding of the charges, describing them as "had sex with two boys," with little insight into the distinct forms of sexual misconduct across the seven counts (at [34]). He had very limited understanding of court proceedings, the purpose of trial, the roles of witnesses and the jury, and his own obligation to instruct counsel (at [35]). His understanding of jury challenge was limited, his ability to give instructions on each of the seven separate incidents was insufficient, and counsel confirmed she was unable to obtain proper instructions (at [36]-[38]).
Preference for Ms Durkin's opinion: Although the opinions of Dr Allnutt and Dr Pulman were more recent and based on a fuller brief, the court accepted Ms Durkin's conclusion. The court found that the qualified nature of the Crown experts' opinions made it inevitable that a further fitness inquiry would arise mid-trial. Proceeding on those qualified opinions would waste court and prosecutorial resources and ultimately serve no purpose (at [39]-[41]). The court concluded that participation in the trial would itself further compromise the accused's capacity and that he would disengage from the process (at [40]).
Orders Made
- The accused JH is unfit to be tried.
- JH is referred to the Mental Health Review Tribunal pursuant to s 14(a) of the MHFPA to determine whether he is likely to become fit within 12 months.
- Bail is to continue.
Key Takeaways
- The District Court confirmed that a fitness inquiry under the MHFPA is non-adversarial, with no onus on any party, and must be determined by a judge alone with reasons stating the principles of law applied and findings of fact (at [3]).
- Having capacity to understand charges and enter a plea is not sufficient for a finding of fitness. The Presser criteria also require the accused to understand the trial process, comprehend the effect of evidence, and be able to give instructions to counsel on each specific allegation (at [39]).
- Where expert opinions in favour of fitness are expressly qualified and anticipate that a further fitness inquiry will likely be required during trial, a court may decline to act on those opinions and proceed to a finding of unfitness at the outset (at [39]-[41]).
- The accused's limited attention span of approximately two hours per day and his need for 17 hours of sleep were among the practical realities informing the court's conclusion that participation in a trial would inevitably compromise his capacity further (at [29], [40]).
- A finding of unfitness does not preclude further proceedings. The matter was referred to the Mental Health Review Tribunal to assess whether the accused was likely to become fit within 12 months, consistent with the MHFPA's structured post-finding regime.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Mental Health (Forensic Provisions) Act 1990
Cases
- R v Kesavarah (1994) 181 CLR 230; [1994] HCA 41
- R v Presser (1958) ALR 128