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Supreme Court 13 September 2019

R v Cody Franklin

[2019] NSWSC 1214

Homicide
CRIMINAL LAW FITNESS TO STAND TRIAL PRESSER TEST SCHIZOPHRENIA SCHIZOAFFECTIVE DISORDER THOUGHT DISORDER

Citation: R v Cody Franklin [2019] NSWSC 1214
Court: Supreme Court of New South Wales
Date: 13 September 2019
Judge(s): Hamill J

Background

The accused was charged with the murder of a man who lived upstairs from him in a unit block in Parkes, NSW, as well as two counts of intentionally damaging property by fire. The prosecution alleged the accused killed the deceased, an unwell and physically frail man weighing 40 kilograms, on the morning of 5 June 2017, and subsequently set fire to property in both the deceased's unit and his own.

From the outset of criminal proceedings, questions arose about the accused's fitness to stand trial. The Criminal List Judge made a determination under s 10 of the Mental Health (Forensic Provisions) Act 1990 (NSW) that a formal inquiry was required. That inquiry was conducted by Hamill J as a judge-alone hearing, consistent with the requirements of the Act.

Both parties agreed that the accused was unfit to stand trial, based on the opinions of two forensic psychiatrists. The hearing proceeded not adversarially, but as a structured inquiry on the balance of probabilities, as required by the Act.

  • Whether the accused met the minimum standards required by the Presser test to be tried without unfairness or injustice.
  • Specifically, whether the accused could: understand the charges; plead to them; exercise the right of challenge; understand the nature and course of proceedings; understand the substantial effect of evidence; and give instructions and make a defence.

Decision

Hamill J applied the well-established test from R v Presser [1958] VR 45, confirmed by the High Court in Kesavarajah v R (1994) 181 CLR 230. That test asks whether an accused, because of mental defect, falls below the minimum standards required to be tried without unfairness. The accused must be able to understand the charge, plead to it, exercise the right of challenge, follow proceedings generally, understand evidence, and instruct counsel.

Two psychiatrists, Dr Adam Martin and Dr Kerri Eagle, each diagnosed the accused with schizophrenia and/or schizoaffective disorder. Both concluded he was unfit to stand trial. The medical records showed a long history of mental illness dating back to 1996. The accused had been treated with electroconvulsive therapy and clozapine, which the psychiatrists described as indicative of a severe and treatment-resistant illness.

At the time of examination, the accused exhibited active psychotic symptoms including thought disorder, auditory hallucinations, and bizarre delusions. He was unable to provide a reliable personal history to either psychiatrist, and he was unable to articulate how he would challenge jurors or evidence. One examining doctor described him as "frankly psychotic" and noted substantial deficits in cognitive function.

Applying the Presser criteria in sequence, Hamill J found the accused could not rationally plead to the charges, could not exercise the right of challenge, lacked meaningful understanding of the nature or course of proceedings, could not understand the substantial effect of evidence, and could not make a defence or give coherent instructions to his lawyers. On the balance of probabilities, the court was satisfied the accused was unfit to stand trial on all relevant criteria.

Orders Made

  • The accused is unfit to be tried.
  • The accused is referred to the Mental Health Review Tribunal under s 14(a) of the Mental Health (Forensic Provisions) Act 1990 (NSW).
  • The accused is remanded in custody pending the Tribunal's determination under s 16 of the Act, or until released to bail or otherwise in accordance with law.
  • The Registrar of the Supreme Court is directed to provide the Tribunal within 21 days with: a copy of the findings and judgment; a copy of the orders; a copy of the transcript; and a copy of the exhibits.

Key Takeaways

  • The Presser test, confirmed by the High Court in Kesavarajah, sets the minimum threshold for fitness to stand trial and is applied by working through each element separately on the balance of probabilities.
  • Fitness inquiries under the Mental Health (Forensic Provisions) Act 1990 (NSW) are non-adversarial: neither party bears an onus of proof, and the court must record its principles and findings in writing.
  • Active symptoms of severe, treatment-resistant schizophrenia or schizoaffective disorder, including thought disorder, active delusions, and hallucinations, can render an accused unable to satisfy multiple elements of the Presser test simultaneously.
  • Agreement between the parties on unfitness, supported by two consistent expert opinions, does not eliminate the court's obligation to conduct and record its own analysis against the Presser criteria.
  • A finding of unfitness does not terminate proceedings: under s 14 of the Act, the matter is referred to the Mental Health Review Tribunal for further determination.

Legislation and Cases Referenced

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

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