Citation: R v Muciello [2019] NSWDC 443
Court: District Court of New South Wales
Date: 1 August 2019
Judge: Judge W Hunt
Background
The accused faced a charge of aggravated assault with intent to rob. At his arraignment on 12 April 2019, his legal representatives formally raised the question of his fitness to stand trial, triggering the District Court's statutory obligation to conduct a fitness inquiry as soon as practicable.
The accused had a lengthy psychiatric history, including multiple hospital admissions since 2008 for auditory hallucinations and delusions, and had been previously dealt with under s 32 of the Mental Health (Criminal Procedure) Act following an earlier offence. His treating and forensic history reflected repeated non-compliance with antipsychotic medication and periods of acute psychosis.
Both the Crown and defence engaged independent psychiatrists to assess fitness. The hearing proceeded on a non-adversarial basis, consistent with the nature of fitness inquiries, and the parties ultimately adopted a joint position that the accused should be found unfit to be tried.
Legal Issues
- Whether the accused met the Presser criteria for fitness to stand trial, as adopted by the High Court in Kesavarajah v R
- Whether the accused's schizophrenic illness and associated neurocognitive deficits rendered him currently unable to understand the proceedings, follow the evidence, or meaningfully instruct his legal representatives
- Whether there was a realistic prospect of the accused becoming fit to be tried within 12 months
Decision
Judge Hunt applied the Presser criteria, which require an accused to be able to understand the charge and the proceedings, follow the evidence, understand the substantial effect of the prosecution's case, and make a defence or answer the charge. Both psychiatric experts, Dr O'Dea (for the Crown) and Dr Ellis (for the defence), reached broadly consistent diagnoses: the accused met the diagnostic criteria for schizophrenia, presenting with a ten-year history of delusions, hallucinations and gradual social decline, complicated further by a mild neurocognitive disorder affecting memory and executive function.
Dr O'Dea found that the accused's schizophrenic illness was not adequately controlled at the time of assessment and that his level of cognitive function and insight may adversely affect his ability to choose a defence and properly understand the prosecution evidence. Although Dr O'Dea expressed himself in more conditional terms, he concluded that on balance the accused was not currently fit from a psychiatric perspective. Dr Ellis similarly found that the accused's cognitive and schizophrenia-related deficits were not under his voluntary control and that they explained his impaired understanding, rather than mere stubbornness or uncooperativeness.
Defence counsel's observations from legal conferences reinforced the expert evidence, with counsel indicating the accused continued to present in a "florid" fashion, making it significantly difficult to obtain instructions and to advise him properly. The court accepted these matters and, having regard to the weight of the expert evidence and the joint position of the parties, found the accused unfit to be tried.
Both experts acknowledged the possibility of some improvement with more assertive treatment, including a trial of Clozapine for treatment-resistant schizophrenia. However, both noted that the neurocognitive impairment made recovery to fitness less likely than it would be for a person without that additional complication. The question of whether the accused might become fit within 12 months was referred to the Mental Health Review Tribunal for assessment.
Orders Made
- The accused was found unfit to be tried.
- The matter was referred to the Mental Health Review Tribunal pursuant to s 14 of the Mental Health (Forensic Provisions) Act.
- The court registry was directed to provide the Tribunal with a copy of the finding, and exhibits tendered at the hearing.
- Bail conditions were varied: the daily reporting obligation was reduced to reporting to Riverwood Police Station on Mondays, Wednesdays and Fridays between 7:30 am and 6:30 pm.
- The existing curfew was modified so that the accused must not be absent from his residential address between 7:00 pm and 7:00 am, unless in the company of his mother.
- An additional bail condition was imposed requiring the accused to accept directions from the Mental Health Review Tribunal.
Key Takeaways
- The District Court applied the Presser criteria as confirmed by the High Court in Kesavarajah v R, assessing whether the accused could understand the charge, follow the proceedings, comprehend the prosecution evidence, and mount a defence.
- A finding of unfitness does not require certainty across all Presser criteria; the court found that deficits in insight, judgment, and the capacity to give instructions were sufficient to support the finding here.
- Where both Crown and defence psychiatric experts reach substantially similar diagnoses and conclusions, and defence counsel's own direct observations are consistent with that expert evidence, a court may properly act on the joint position of the parties in making an unfitness finding.
- Neurocognitive impairment arising from a history of childhood head injury, in combination with inadequately treated schizophrenia, was treated as a complicating factor that reduced the likelihood of recovery to fitness within 12 months.
- Under the Mental Health (Forensic Provisions) Act, once an unfitness finding is made, the question of whether the accused may become fit within the statutory period passes to the Mental Health Review Tribunal rather than remaining with the court.
Legislation and Cases Referenced
Legislation
- Mental Health (Forensic Provisions) Act (NSW), ss 10, 14
- Mental Health (Criminal Procedure) Act (NSW), s 32
Cases
- Kesavarajah v R [1994] HCA 41
- R v Presser [1958] VR 45