Citation: NSW Police v Williamson [2018] NSWLC 25
Court: Local Court of NSW
Date: 12 June 2018
Judge: Magistrate M O'Brien
Background
The defendant, a man in his late fifties, faced five charges arising from two alleged incidents of serious domestic violence against his adult daughters at his home in Batlow, NSW. The charges included reckless wounding, assault with intent to commit an indictable offence, assault occasioning actual bodily harm, and common assault. The alleged injuries to both complainants were significant enough to require hospitalisation or medical treatment.
About two weeks before the scheduled hearing date, the defendant's solicitor raised a concern about the defendant's fitness to stand trial. The hearing was vacated, and the court listed a separate application to determine both fitness to stand trial and whether the defendant was suitable for diversion under s 32 of the Mental Health (Forensic Provisions) Act 1990 (MHFPA). Expert evidence was provided by Dr Roger Blake, a psychiatrist, whose report identified cognitive and memory impairments in the defendant.
The defendant sought either a permanent stay of all proceedings or, alternatively, discharge under s 32 of the MHFPA. The Magistrate reserved and then delivered a written judgment to provide clear reasons for both the prosecution and the defence.
Legal Issues
- Whether the Local Court has jurisdiction to determine fitness to stand trial
- Who bears the onus of proof, and to what standard, on a fitness to stand trial application
- What remedy is available if the defendant is found unfit to stand trial
- Whether the defendant met the threshold for unfitness under the Presser test
- Whether the defendant was suitable for diversion under s 32 of the MHFPA
Decision
Jurisdiction: The Magistrate confirmed that Part 2 of the MHFPA applies only to the District and Supreme Courts, not the Local Court. The Local Court therefore relies on the common law to determine fitness to stand trial. Citing Mantell v Molyneux [2006] NSWSC 955 and R v Presser [1958] VR 45, the Magistrate was satisfied that the Local Court has jurisdiction to hear such an application. The court also proceeded on the basis that it could hear the application in relation to the Table 1 indictable offence (reckless wounding), noting the DPP had made no election to proceed on indictment.
Onus and standard of proof: The onus rested on the defendant to establish, on the balance of probabilities, that he was not fit to stand trial. This followed the principle stated in R v Basha (1989) 39 A Crim R 337.
Fitness to stand trial: The Magistrate applied the Presser test, which asks whether a defendant, because of mental defect, fails to meet the minimum standards required for the proceedings to be conducted without unfairness or injustice to that person. Although Dr Blake's report identified cognitive and memory impairments, the Magistrate was not satisfied on the balance of probabilities that the defendant fell below the threshold required by the Presser test. The application for a permanent stay was accordingly dismissed.
Section 32 diversion: The Magistrate also refused to make a s 32 order diverting the defendant away from the criminal justice system. The treatment plan proposed by Dr Blake was limited to monthly GP attendance and medication to address substance use cravings. The Magistrate noted that Dr Blake had acknowledged the defendant's cognitive impairment could not be treated, that an order under s 32 is of limited duration, and that the charges were serious. Balancing those competing considerations, the Magistrate concluded that a s 32 order was not appropriate.
Orders Made
- The application for a permanent stay of proceedings and for diversion under s 32 of the MHFPA was dismissed.
- An urgent hearing date was to be allocated.
Key Takeaways
- The Local Court confirmed it has jurisdiction, at common law, to determine whether a defendant is fit to stand trial, notwithstanding that the formal statutory regime in Part 2 of the MHFPA is limited to the District and Supreme Courts.
- Under the Presser test, a defendant is not fit to stand trial if, because of mental defect, they fail to meet minimum standards necessary for the proceedings to be conducted without unfairness or injustice. The onus rests on the defendant to establish unfitness on the balance of probabilities.
- A finding of cognitive impairment does not automatically establish unfitness. The defendant must demonstrate that the impairment causes them to fall below the Presser threshold.
- Where a proposed s 32 treatment plan addresses only subsidiary issues (such as substance cravings) and does not treat the underlying cognitive deficit, and where the charges are serious, a court may decline to make a diversion order after balancing the competing interests.
- The terminology "fitness to stand trial" or "fitness to be tried" is more accurate than "fitness to plead," given that fitness to enter a plea is only one component of the broader concept.
Legislation and Cases Referenced
Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 32
- Criminal Procedure Act 1986 (NSW), s 202
- Justice Legislation Amendment Act 2017 (rep)
Cases:
- R v Presser [1958] VR 45
- Mantell v Molyneux [2006] NSWSC 955
- Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23
- R v Basha (1989) 39 A Crim R 337
- Eastman v R [2000] HCA 29; (2000) 203 CLR 1
- Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230
- Ngatayi v R (1980) 147 CLR 1
- R v Mailes [2001] NSWCCA 155; (2001) 53 NSWLR 251
- R v Littler [2001] NSWCCA 173
- Director of Public Prosecutions v El Mawas [2006] NSWCA 154
- Quinn v Director of Public Prosecutions [2015] NSWCA 331
- Director of Public Prosecutions (NSW) v Saunders [2017] NSWSC 760
- Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129