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Supreme Court 7 November 2018

R v Stojic

[2018] NSWSC 1893

Homicide
CRIME MURDER CHARGE FITNESS TO STAND TRIAL CONSIDERATION OF THE PRESSER CRITERIA PSYCHIATRISTS IN AGREEMENT ON UNFITNESS HELD UNFIT TO BE TRIED

Citation: R v Stojic [2018] NSWSC 1893
Court: Supreme Court of New South Wales
Date: 7 November 2018
Judge(s): Rothman J

Background

The accused was charged with the murder of a man shot multiple times at Kingsgrove in the early hours of 26 July 2017. The Crown's case included CCTV footage, telephone records, fired cartridge cases found in the accused's room, and a statement by the accused that a dead body was in the victim's campervan before police had located it.

The question of the accused's fitness to stand trial was first raised in June 2018. In September 2018, the court determined that a formal inquiry should be conducted under the Mental Health (Forensic Provisions) Act 1990 (NSW) before any arraignment on the murder charge.

Both the Crown and the defence retained forensic psychiatrists to examine the accused and report on his capacity to be tried.

  • Whether the accused met the minimum standards for fitness to stand trial as set out in R v Presser [1958] VR 45
  • Whether, applying those standards and the psychiatric evidence, the court should find the accused unfit to be tried for murder
  • What orders should follow from a finding of unfitness under the Mental Health (Forensic Provisions) Act 1990 (NSW)

Decision

Rothman J conducted the inquiry as required by ss 10 and 11 of the Act, sitting without a jury. The inquiry is non-adversarial under s 12 of the Act, and no party bears the onus of proof on the question of unfitness.

The applicable test derives from R v Presser, which sets minimum standards for a person to be fit to stand trial. Those standards require, among other things, that the accused can understand the charge, follow proceedings in a general sense, comprehend the substantial effect of evidence given against them, give instructions to counsel, and articulate their own version of events. The High Court in Kesavarajah v The Queen (1994) confirmed that the length of a trial is also relevant to whether a person can sustain the capacity to give instructions throughout.

Both the Crown's psychiatrist, Professor Greenberg, and the defence psychiatrist, Dr Allnutt, agreed that the accused was not fit to stand trial. Their reports documented a complex constellation of systematised paranoid and grandiose delusions, including beliefs that the accused was a federal agent, a member of the Queen's Guard, and a former CIA operative, among many others. Witnesses including co-workers confirmed the accused held these beliefs genuinely. Both psychiatrists concluded that the accused's delusional preoccupation impaired his ability to give proper instructions to counsel throughout the course of a trial.

Rothman J held that it would be perverse to reach a conclusion different from both psychiatrists. The court found the accused unfit to be tried at the time of the hearing and likely to remain so for the following 12 months, and referred the matter accordingly.

Orders Made

  • The matter was referred to the Mental Health Review Tribunal under s 14(a) of the Mental Health (Forensic Provisions) Act 1990 (NSW).
  • The accused was remanded in custody pending the Tribunal's determination under s 16 of the Act, in accordance with s 14(b)(iii).
  • The Registrar of the Supreme Court was directed to provide the following documents to the Mental Health Review Tribunal within 14 days: a copy of the finding and reasons; a copy of the orders made; a copy of the transcript of proceedings; copies of the psychiatric reports; and a copy of the Crown Case Statement.

Key Takeaways

  • The Presser criteria remain the applicable standard for assessing fitness to stand trial in NSW, requiring an accused to understand the charge, follow proceedings, comprehend evidence, and give adequate instructions to counsel.
  • Under s 12 of the Mental Health (Forensic Provisions) Act 1990 (NSW), fitness inquiries are conducted in a non-adversarial manner and no party bears the burden of proof.
  • Where forensic psychiatrists retained by both parties reach identical conclusions on unfitness, the Supreme Court confirmed that departing from their agreement would be "perverse" absent some compelling countervailing basis.
  • A finding of unfitness does not terminate proceedings: the accused is referred to the Mental Health Review Tribunal, which then determines the next steps, and the accused may remain remanded in custody in the interim.
  • Complex systematised delusional disorder, even where an accused retains some rudimentary understanding of the charges, can satisfy the threshold for unfitness if it impairs the sustained capacity to give instructions throughout what may be a lengthy trial.

Legislation and Cases Referenced

Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 8, 10, 11, 12, 14, 16

Cases:
- R v Presser [1958] VR 45
- Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41