AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 8 November 2019

R v Pesamino

[2019] NSWSC 1559

Other
MENTAL HEALTH CRIMINAL PROCEEDINGS FITNESS TO BE TRIED “PRESSER” PRINCIPLES ACCUSED UNFIT TO BE TRIED

Citation: R v Pesamino [2019] NSWSC 1559
Court: Supreme Court of New South Wales
Date: 8 November 2019
Judge: Cavanagh J

Background

The accused was charged with murder and two assault offences arising from events at a residential unit complex in Villawood in 2018. The most serious charge alleged that he attacked a fellow resident, causing his death on 3 May 2018. The accused had a long psychiatric history, including a diagnosis of paranoid schizophrenia dating to around 2013, and a concurrent chronic substance abuse disorder.

The question of the accused's fitness to stand trial was raised by him and came before the Supreme Court in November 2019. The court ordered a formal inquiry under Part 2 of the Mental Health (Forensic Provisions) Act 1990 (NSW). Both the accused and the Crown agreed that he was unfit to be tried, though the court was still required to conduct the inquiry and make a formal finding.

Three consultant psychiatrists, Dr Gerald Chew, Dr Stephen Allnutt, and Dr Adam Martin, had each assessed the accused at different points. Their conclusions were broadly consistent: the accused presented with active psychotic symptoms, poverty of thought, auditory hallucinations, and significant cognitive difficulties.

Legal Issues

  • Whether the accused met the minimum standards for fitness to stand trial as identified in R v Presser [1958] VR 45 and confirmed in Kesavarajah v The Queen (1994) 181 CLR 230
  • Whether the accused's paranoid schizophrenia, even when partially managed by medication, rendered him unable to understand the charges, enter a plea, follow proceedings, or give proper instructions to his legal representatives
  • What orders should follow from a finding of unfitness under the Mental Health (Forensic Provisions) Act 1990 (NSW)

Decision

The Presser Standards and the Inquiry Process

The court noted that the inquiry under section 11 of the Act is conducted by a judge alone, that it is not adversarial, and that no onus of proof rests on any party (at [15]). The court must make a finding one way or the other: fitness or unfitness (at [17]). The applicable test derives from the Presser minimum standards, requiring the accused to be able to understand the charges, enter a plea, understand the general nature of the proceedings, follow evidence, and give instructions to counsel (at [18]-[19]).

The Expert Psychiatric Evidence

Both Dr Allnutt and Dr Martin concluded the accused was unfit to stand trial, though with some variance in their reasoning (at [56]). Dr Allnutt considered the accused's fitness "marginal" at the time of his first examination but found his capacity to plead questionable and his ability to follow proceedings and give meaningful instructions impaired (at [38]-[41]). Dr Martin, assessing the accused in September 2019, could not be satisfied that he understood the charges, what it means to plead, the purpose of the court, or evidentiary processes (at [49]). Dr Martin also confirmed that the accused's condition waxes and wanes, and that standard antipsychotic medication would stabilise rather than restore fitness (at [50]-[54]).

Finding of Unfitness

The court accepted that the accused suffers from paranoid schizophrenia aggravated by a chronic substance abuse disorder (at [57]). Even when stabilised on medication, his condition was not sufficient to render him fit to be tried (at [57]). He remained confused about the nature of the charges, his capacity to enter a plea was at best questionable, and his concentration problems, working memory deficits, and ongoing auditory hallucinations meant he could not follow proceedings or properly instruct counsel (at [58]-[59]). The court emphasised that his condition went well beyond a mere difficulty in relating to counsel or a tendency toward delusional thinking about the trial process, citing Eastman v R (at [60]). The chronic nature of his paranoid schizophrenia meant he could not understand the charges against him, enter a plea, or follow proceedings to the required standard (at [60]).

Orders Made

  • The accused was found unfit to be tried and referred to the Mental Health Review Tribunal pursuant to section 14 of the Mental Health (Forensic Provisions) Act 1990 (NSW)
  • The accused was remanded in custody
  • Proceedings were adjourned pending the Tribunal's determination
  • The matter was listed for mention in the next arraignments list on 6 December 2019
  • The Registrar was directed to forward all exhibits, the transcript, and the judgment to the Tribunal

Key Takeaways

  • Under the Presser standards, an accused must be able to understand the charges, enter a plea, follow proceedings, and give proper instructions to counsel; falling short across multiple of these standards, due to chronic paranoid schizophrenia, supported a finding of unfitness (at [18]-[20], [60]).

  • Fitness to stand trial is not a binary question resolved simply by whether medication stabilises an accused's condition. The Supreme Court accepted that even with standard antipsychotic treatment, the accused's schizophrenia remained such that he could not meet the Presser minimum standards (at [57]).

  • The fluctuating nature of schizophrenia, its tendency to wax and wane, is itself a relevant factor in assessing fitness. Periods of relative lucidity, such as a coherent police interview, do not necessarily demonstrate fitness to stand trial across the full course of proceedings (at [50]-[51], [58]).

  • A formal judicial finding of fitness or unfitness is required under the Mental Health (Forensic Provisions) Act 1990 (NSW) regardless of whether the parties agree on the outcome. The court cannot simply defer to a consensus without conducting the statutory inquiry and making a formal determination (at [13], [17]).

  • Where a finding of unfitness is made, section 14 of the Act mandates referral to the Mental Health Review Tribunal, which then determines whether the accused is likely to become fit within 12 months (at [16], [61]).

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 128(2)
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 5, 10, 11, 12, 13, 14, 16

Cases
- Eastman v R (2000) 203 CLR 1; [2000] HCA 29
- Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41
- R v Presser [1958] VR 45