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Supreme Court 2 August 2018

R v Ohlsen

[2018] NSWSC 1193

Homicide
CRIME MURDER INQUIRY HELD PRESSER CRITERIA APPLIED

Citation: R v Ohlsen [2018] NSWSC 1193
Court: Supreme Court of New South Wales
Date: 2 August 2018
Judge: Wilson J

Background

The accused was charged with the murder of a man at Albury on 1 September 2016, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). The alleged killing involved a stabbing at the deceased's home. The accused and the deceased had been in a sporadic domestic relationship, and both had used methylamphetamine in the hours before the alleged offence.

The accused first appeared before the Supreme Court in August 2017. The matter was adjourned on multiple occasions before the question of her fitness to stand trial was formally raised in May 2018. The fitness inquiry was conducted on 2 and 3 August 2018, the earliest practicable date.

The accused had a lengthy history of mental illness, including a guardianship order that had been in place since July 2011. In the period leading up to the alleged offence, she had been observed to be in a disordered state, hearing voices, and non-compliant with voluntary rehabilitation programmes. The Public Guardian had sought expanded powers over her accommodation just weeks before the alleged murder occurred.

  • Whether the accused was unfit to be tried for murder within the meaning of the Mental Health (Forensic Provisions) Act 1999 (NSW)
  • Whether the accused satisfied the minimum standards of comprehension required by the Presser criteria
  • Whether the accused was unlikely to become fit to stand trial within a 12-month period

Decision

Wilson J applied the well-established Presser criteria, derived from R v Presser [1958] VR 45 and confirmed by the High Court in Ngatayi v The Queen (1980) and Kesavarajah v The Queen (1994). Those criteria require an accused to have a minimum level of comprehension to participate meaningfully in a trial, including the ability to understand the charge, follow proceedings in a general sense, understand the substantial effect of evidence led against them, and give instructions to counsel.

The Court received psychiatric evidence from two experts, Dr Jonathan Adams and Dr Richard Furst, both of whose reports were accepted. That evidence described a long-standing and treatment-resistant diagnosis of schizophrenia, with the accused continuing to manifest severe symptoms despite almost two years in custody and presumed abstinence from illicit drugs. The accused's most recent psychiatric consultation had taken place in March 2018, and the Court found no basis to conclude her condition had materially improved since then.

Wilson J was satisfied on the balance of probabilities that the accused fell short of the Presser criteria in several respects. While she appeared to have some understanding of available pleas and the general nature of a trial, she could not exercise her right of challenge, follow proceedings in a general sense, understand the substantial effect of evidence against her, or give a coherent and rational account of events to her legal representatives or the court.

Accordingly, the Court found the accused unfit to be tried and also found she was unlikely to become fit within a 12-month period. Under s 14 of the Mental Health (Forensic Provisions) Act 1999 (NSW), the matter was referred to the Mental Health Review Tribunal, and the accused was remanded in custody pending the Tribunal's determination.

Orders Made

  • The accused was found unfit to be tried for the offence of murder on the balance of probabilities, and unlikely to become fit within a 12-month period.
  • The accused was referred to the Mental Health Review Tribunal pursuant to s 14(a) of the Mental Health (Forensic Provisions) Act 1999 (NSW).
  • Bail was refused until the determination of the Mental Health Review Tribunal had been given effect to.

Key Takeaways

  • The Presser criteria set a minimum threshold of comprehension for an accused to stand trial; partial understanding of some elements does not satisfy the standard if other capacities are substantially absent.
  • Fitness to be tried is assessed on the balance of probabilities under s 6 of the Mental Health (Forensic Provisions) Act 1999 (NSW), with no onus of proof resting on either party.
  • A fitness inquiry is not adversarial in nature; the court is required to determine the question having regard to principles of law and stated findings of fact.
  • Long-standing, treatment-resistant schizophrenia, continuing despite custody and the absence of illicit drug use, was sufficient to establish both current unfitness and the unlikelihood of fitness being achieved within 12 months.
  • Under s 14 of the Act, a finding of unfitness combined with an unlikely prospect of recovery within 12 months triggers mandatory referral to the Mental Health Review Tribunal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18(1)(a)
- Mental Health (Forensic Provisions) Act 1999 (NSW), ss 6, 10, 11, 12, 13, 14

Cases
- R v Presser [1958] VR 45
- Ngatayi v The Queen [1980] HCA 18; 147 CLR 1
- Kesavarajah v The Queen [1994] HCA 41; 181 CLR 230