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Supreme Court 6 December 2018

R v Drummond-Murray

[2018] NSWSC 1870

Homicide
CRIMINAL LAW COUNT OF MURDER ISSUE OF FITNESS OF ACCUSED TO BE TRIED INQUIRY HELD UNANIMOUS EVIDENCE OF PSYCHIATRISTS EVIDENCE FROM TWO DEFENCE SOLICITORS

Citation: R v Drummond-Murray [2018] NSWSC 1870
Court: Supreme Court of New South Wales
Date: 6 December 2018
Judge(s): Button J

Background

The accused faced an indictment containing four counts, the most serious being murder. The Crown alleged that in November 2015 the accused, then aged 37, stabbed a 27-year-old man outside a homeless shelter in Surry Hills. The victim was rendered tetraplegic and died in August 2017, at which point murder was added to the charges. The Crown described the evidence against the accused, including CCTV footage, as overwhelming.

The accused had been in custody since his arrest in November 2015. Psychiatric evidence from both the Crown and defence agreed that, at the time of the alleged acts, the accused was suffering from untreated chronic schizophrenia and had available to him the defence of mental illness.

The question of the accused's fitness to stand trial had already been litigated. In February 2017, Judge Frearson SC in the District Court found the accused unfit, and the Mental Health Review Tribunal confirmed that finding in May 2017. When the indictment was filed in the Supreme Court in December 2018, the fitness question was revisited before Button J.

  • Whether, as at December 2018, the accused was fit to stand trial on the indictment, including the murder count.
  • Whether the accused satisfied the requirements of the fitness test in R v Presser [1958] VR 45, which sets out the minimum functional capacities a person must have to participate meaningfully in criminal proceedings.
  • What orders should follow from a finding of unfitness under the Mental Health (Forensic Provisions) Act 1990 (NSW).

Decision

Button J conducted a fitness hearing after concluding there remained a genuine question about the accused's fitness, as required by s 5 of the Mental Health (Forensic Provisions) Act 1990 (NSW). The hearing received reports from two forensic psychiatrists and affidavits from the accused's former and current solicitors.

The Crown's psychiatrist, Professor Greenberg, had at earlier points considered the accused fit, but in his most recent report of September 2018 concluded the accused was not fit. He identified that the accused's ongoing acute psychotic symptoms and severe negative symptoms of schizophrenia would prevent him from giving a sworn account of events or meaningfully instructing counsel. Defence psychiatrist Dr Furst had consistently held the view of unfitness throughout, noting at a July 2018 interview that the accused could not explain the difference between a guilty and not guilty plea, and was spontaneously referencing delusional relationships as informing his approach to the trial. Both solicitors attested to the profound difficulty of obtaining coherent instructions.

His Honour acknowledged a general caution against too readily finding unfitness, noting that such a finding is often procedurally disadvantageous to an accused. Nonetheless, Button J was satisfied that while the accused might, with assistance, grasp some basic aspects of the proceedings, his mental illness made it impossible for him to provide instructions, understand the proceedings, give sensible evidence, or make the fundamental decisions reserved to him rather than his legal team. The court was therefore affirmatively satisfied, on the balance of probabilities, that the accused was unfit to stand trial.

Orders Made

  • The accused was found unfit to be tried for the offences charged on the indictment.
  • The accused was referred to the Mental Health Review Tribunal pursuant to s 14 of the Mental Health (Forensic Provisions) Act 1990 (NSW).
  • Proceedings were adjourned and the accused was remanded in custody pending the Tribunal's determination.
  • The matter was listed for mention on 8 February 2019.
  • The Registrar was directed to forward the hearing exhibits, transcript, and judgment to the Registrar of the Mental Health Review Tribunal.

Key Takeaways

  • A finding of unfitness to stand trial requires satisfaction on the balance of probabilities that the accused cannot fulfil the minimum requirements set out in R v Presser, including the ability to instruct counsel, understand proceedings, give evidence, and make fundamental litigation decisions.
  • Unanimous psychiatric evidence, combined with practical evidence from defence solicitors about the inability to obtain coherent instructions, can form a sufficient evidentiary basis for a finding of unfitness.
  • Resistance to antipsychotic medication over a prolonged period of supervised treatment is a relevant factor in assessing whether fitness is likely to be restored, and may reinforce a finding of ongoing unfitness.
  • The Supreme Court reaffirmed that courts should not find unfitness too readily, noting the procedural disadvantages such a finding can create for an accused, but held that where mental illness fundamentally prevents participation in the proceedings no other conclusion was open.
  • Under the Mental Health (Forensic Provisions) Act 1990 (NSW), a finding of unfitness triggers referral to the Mental Health Review Tribunal, which then takes over the assessment of the accused's ongoing status.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 5, 12(3), 14

Cases
- R v Presser [1958] VR 45 (the foundational Victorian Supreme Court decision setting out the minimum functional requirements for fitness to stand trial, applied throughout Australian jurisdictions)