AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 20 June 2019

R v Richard (a pseudonym)

[2019] NSWDC 272

Sexual offencesPublic order & justice offences
PROCEDURAL RULING FITNESS TO STAND TRIAL INTELLECTUAL DISABILITY CHILD SERIOUS SEXUAL OFFENCES FITNESS ISSUE PROPERLY RAISED

Citation: R v Richard (a pseudonym) [2019] NSWDC 272
Court: District Court of New South Wales
Date: 20 June 2019
Judge(s): Haesler SC DCJ

Background

The accused, referred to by the pseudonym Richard (a pseudonym required by the Children (Criminal Proceedings) Act 1987), was born in December 2000 and was a child at the time of the alleged offending. He has an intellectual disability and lives with his mother and stepfather near Wollongong. Testing placed his full-scale IQ between 64 and 72, in the extremely low range for his age group.

Richard faced eight counts on indictment after being committed to the District Court in November 2018. The charges included multiple counts of sexual intercourse with a child under 10 (carrying a maximum penalty of life imprisonment), sexual intercourse with a child aged 10 to 14, inciting a child to commit acts of indecency, assault and acts of indecency on a child, and inciting a child to an act of indecency knowing it was being filmed for child pornography.

Both the prosecution and defence raised the question of Richard's fitness to stand trial on a genuine basis. The court was therefore required by statute to conduct an inquiry as soon as practicable to determine whether he was unfit to be tried.

Legal Issues

  • Whether Richard was fit to stand trial for the offences charged, applying the criteria established in R v Presser (1958) VR 45 and confirmed by the High Court
  • What weight to place on the expert opinions of the forensic psychologists and forensic psychiatrist, including a revised opinion from the lead psychologist
  • Whether the availability of special measures and court support could bring Richard within the minimum fitness requirements
  • The appropriate procedural outcome if Richard was found unfit

Decision

Issue 1: The applicable fitness criteria

The court applied the Presser criteria, as adopted by the High Court in Ngatayi v The Queen (1980) 147 CLR 1 and Kesavarajah v The Queen (1994) 181 CLR 230. Those criteria identify the minimum requirements for a fair trial, including that an accused must be able to understand the nature of the charges and their implications, follow the course of the proceedings, give adequate instructions to counsel, and make a defence (at [16]-[17], [26]).

Issue 2: The expert evidence

Three experts provided reports. Ms Howell, forensic psychologist, found Richard had a mild intellectual disability, with compromised memory, recall and communication, and no real understanding of consent or legal consequences, though her report focused primarily on risk management rather than the fitness criteria directly (at [18]). Dr Roberts, forensic psychiatrist, applied the Presser criteria directly and found Richard could not explain basic concepts such as "judge," "jury," "guilty" or "not guilty," was an unreliable historian, and could not engage with sufficient sophistication in a complex legal process even with considerable support (at [19]-[22]). Ms Duffy, forensic psychologist, initially considered that Richard might meet the fitness criteria with assistance and support, but in a supplementary report revised her opinion. She concluded that Richard's entrenched reluctance to discuss the matter, poor working memory and verbal comprehension, and tendency to confabulate meant he failed the fitness criteria even with extensive support (at [23]-[25]).

Issue 3: Whether special measures could remedy the position

The court noted that an intellectual disability does not automatically render an accused unfit, and that courts can adopt flexible procedures, allocate more time, and provide extensive support to enable an intellectually disabled accused to participate (at [27]). The court referenced its own decision in R v Andrew [No 1] [2018] NSWDC 381 as an example of that approach. However, the court was satisfied that all parties and experts had given these issues careful consideration, and that special measures would not assist Richard to understand or participate meaningfully in the trial (at [28]).

Issue 4: Finding of unfitness

The court found as a fact that Richard could not make a defence or answer the charges. He could not reliably give instructions to his counsel, communicate his version of events, decide on his defence, or properly enter a plea. The court accordingly found Richard unfit to stand trial and referred the matter to the Mental Health Review Tribunal (at [29]-[30]).

Orders Made

  • Richard found unfit to stand trial
  • Matter referred to the Mental Health Review Tribunal for determination pursuant to section 16 of the Mental Health (Forensic Provisions) Act 1990
  • Bail continued, with the court to hear submissions on any required variations to bail conditions

Key Takeaways

  • A finding of unfitness to stand trial requires the court to conduct a non-adversarial inquiry under the Mental Health (Forensic Provisions) Act 1990, with no onus of proof resting on any particular party; the judge must make an independent determination based on all the evidence, even where both parties agree on the outcome (at [11], [14]-[15]).

  • Under the Presser criteria, the minimum requirements for a fair trial include the capacity to understand the charges and their implications, follow proceedings, give reliable instructions to counsel, and make a defence; a deficit in any of these areas may ground a finding of unfitness (at [16]-[17], [26]).

  • An intellectual disability in the "mild" range under DSM-5 classification does not automatically establish unfitness; the District Court confirmed that courts can employ flexible procedures and extensive support to enable participation, and the fitness assessment must be conducted on the facts of each case (at [27]).

  • Where the court's own assessment of the evidence, including a revised expert opinion, confirmed that even extensive support would not enable the accused to participate meaningfully, a referral to the Mental Health Review Tribunal was required by statute (at [28]-[30]).

  • Practical evidence from the accused's own solicitor, including an affidavit from a lawyer with over 30 years' experience in children's criminal proceedings, can form part of the factual record in a fitness inquiry, supplementing expert psychological and psychiatric opinion (at [13]).

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987
- Mental Health (Forensic Provisions) Act 1990

Cases
- Kesavarajah v The Queen (1994) 181 CLR 230
- Ngatayi v The Queen (1980) 147 CLR 1
- R v Andrew [No 1] [2018] NSWDC 381
- R v Presser (1958) VR 45