Citation: R v Threlfo [2019] NSWDC 276
Court: District Court of NSW
Date: 8 May 2019
Judge: Bright DCJ
Background
The accused faced a charge of aggravated break, enter and commit a serious indictable offence (larceny) under s 112(2) of the Crimes Act 1900. The Crown alleged that in May 2017 the accused forced entry into a victim's home in Tuggerah, brandishing a machete, and left with a mobile phone, causing damage to windows and a vehicle.
When the accused appeared unrepresented for trial at the Gosford District Court in March 2019, Wilson J formed the view that his fitness to stand trial was in question under s 5 of the Mental Health (Forensic Provisions) Act 1990. The accused consented to examination by a Crown-appointed forensic psychologist, and a fitness hearing was convened.
Legal Issues
- Whether the accused was fit to be tried, applying the Presser criteria derived from R v Presser [1958] VR 45 and affirmed by the High Court in R v Kesavarajah (1994) 181 CLR 245
- Whether the fitness hearing could proceed with the accused unrepresented
Decision
Issue 1: Proceeding with an unrepresented accused at the fitness hearing
Bright DCJ permitted the fitness hearing to proceed without the accused having legal representation. Two considerations supported this course: the accused had expressed a clear intention to represent himself at trial, and the forensic psychologist had already opined that the accused was fit to do so (at [9]).
Issue 2: Fitness to stand trial under the Presser criteria
The court applied the Presser criteria, which set the minimum standards below which a trial cannot proceed without the risk of unfairness and injustice to the accused (at [11]-[12]). Dr Adam Martin, a forensic psychologist retained by the Crown, examined the accused for approximately one hour on 9 April 2019 and provided a report dated 24 April 2019 (at [5]-[6]).
The accused reported a long history of drug and alcohol use beginning at age 11, but denied any history of mental health problems, psychiatric admissions, or prescribed psychiatric medication (at [21]-[22]). Dr Martin found no psychomotor disturbance on assessment and concluded that the accused satisfied the Presser criteria and was fit to represent himself at trial (at [23]-[25]).
Relying on Dr Martin's opinion and the available evidence, the court was satisfied on the balance of probabilities that the accused was fit to be tried (at [26]).
Orders Made
- Pursuant to s 13 of the Mental Health (Forensic Provisions) Act 1990, the accused was found fit to be tried and the matter was to be fixed for trial.
Key Takeaways
- The District Court applied the well-established Presser criteria, confirming that the test for fitness to stand trial requires the accused to meet minimum standards to avoid the possibility of unfairness and injustice, as affirmed by the High Court in R v Kesavarajah (1994) 181 CLR 245 (at [11]-[12]).
- A fitness hearing under the Mental Health (Forensic Provisions) Act 1990 may proceed with an unrepresented accused where that person has clearly elected self-representation and expert opinion supports their capacity to do so (at [9]).
- The standard of proof for a fitness finding under s 13 of the Mental Health (Forensic Provisions) Act 1990 is the balance of probabilities (at [26]).
- Expert forensic psychological evidence was the central evidentiary foundation for the fitness determination; Dr Martin's conclusion that the accused satisfied the Presser criteria was adopted by the court (at [25]-[26]).
- A history of significant drug and alcohol use does not, of itself, establish unfitness to be tried: the accused's reported long-term substance use did not lead the forensic psychologist or the court to a finding of unfitness (at [21]-[26]).
Legislation and Cases Referenced
Legislation
- Mental Health (Forensic Provisions) Act 1990
- Crimes Act 1900
Cases
- R v Presser [1958] VR 45
- R v Kesavarajah (1994) 181 CLR 245