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District Court 2 September 2019

R v McGregor

[2019] NSWDC 878

Assault & violence

Citation: [2019] NSWDC 878
Court: District Court of New South Wales
Date: 2 September 2019
Judge: Grant DCJ

Background

The accused was charged with assault causing grievous bodily harm with intent, arising from an incident at Parramatta bus station on 12 June 2018. CCTV footage showed him punch the complainant in the head with a closed fist after a brief exchange, causing multiple facial fractures and a serious hip fracture. The accused is deaf and communicates using Auslan and signed English.

Both the prosecution and the defence raised the question of the accused's fitness to stand trial on a genuine basis. The accused had been diagnosed with schizophrenia and a likely substance use disorder. Under section 10 of the Mental Health (Forensic Provisions) Act 1990, the Court was therefore required to conduct an inquiry into his fitness as soon as practicable.

The fitness inquiry is not adversarial, and the onus of proof does not rest on either party. The judge alone determines the question.

  • Whether the accused met the minimum standards for fitness to be tried, as set out in R v Presser (1958) VR 45 and confirmed by the High Court
  • Whether his schizophrenia, cognitive difficulties, and communication limitations rendered him unable to understand the proceedings, follow the evidence, or give meaningful instructions to his lawyers
  • What orders should follow if the accused were found unfit

Decision

Grant DCJ applied the Presser criteria, which require an accused to understand the charge, appreciate the nature of the proceedings, follow the evidence, and give instructions to his legal representatives. The criteria, adopted by the High Court in Ngatayi v R (1980) and Kesavarajah v R (1994), set a baseline, not a high bar: the accused need not understand every court formality or be capable of mounting an able defence, but must have sufficient capacity to participate meaningfully.

Two forensic psychiatrists gave evidence. Dr Andrew Ellis, reporting in December 2018, concluded that the accused likely could not appreciate the seriousness of the charge, had limited and fluctuating capacity to absorb legal concepts, suffered from ongoing hallucinations and delusional beliefs that would impair consistent thinking, and lacked insight into his mental illness and the defences available to him. Dr Jonathan Adams, reporting in July 2019, reached the same conclusion: the accused demonstrated only a rudimentary understanding of his charge, showed significant thought disorder and auditory hallucinations affecting his capacity to follow proceedings, and would not be capable of participating in a potentially lengthy criminal trial.

Grant DCJ accepted both reports and found, on the balance of probabilities, that the accused was not fit to stand trial. His Honour noted that while some of the accused's communication difficulties might be addressed through skilled interpreter services, the persisting symptoms of schizophrenia would independently prevent him from satisfying the Presser standards.

Orders Made

  • The accused was found unfit to stand trial on the balance of probabilities.
  • The matter was referred to the Mental Health Review Tribunal for determination pursuant to section 16 of the Mental Health (Forensic Provisions) Act 1990.

Key Takeaways

  • The District Court confirmed that fitness to stand trial is determined by applying the Presser criteria: whether the accused can understand the charge, follow the proceedings, and give meaningful instructions to counsel, among other requirements.
  • Under the Mental Health (Forensic Provisions) Act 1990, where both prosecution and defence raise fitness on a genuine basis, the court must conduct an inquiry, conducted by the judge alone and without the adversarial burden of proof resting on either party.
  • Active psychiatric symptoms, including ongoing hallucinations and thought disorder, can independently render an accused unfit even where some communication barriers might otherwise be addressed by reasonable adjustments such as interpreter services.
  • A finding of unfitness does not end the matter: the Mental Health (Forensic Provisions) Act 1990 provides for referral to the Mental Health Review Tribunal, which may facilitate either a resumption of proceedings if the accused becomes fit or a special hearing if fitness is unlikely to be achieved.
  • Both experts agreed on the outcome, and the court found on the balance of probabilities that the accused was unfit, illustrating that the standard of proof in fitness inquiries is the civil standard rather than the criminal standard of beyond reasonable doubt.

Legislation and Cases Referenced

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

Cases
- R v Presser (1958) VR 45
- Ngatayi v R (1980) 147 CLR 1
- Kesavarajah v R (1994) 181 CLR 230