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Supreme Court 9 December 2019

R v Graf

[2019] NSWSC 1767

Homicide
CRIMINAL LAW MURDER FITNESS TO STAND TRIAL TREATMENT RESISTANT SCHIZOPHRENIA PRESSER TEST RELEVANT CRITERIA

Citation: R v Graf [2019] NSWSC 1767
Court: Supreme Court of New South Wales
Date: 9 December 2019
Judge(s): Hamill J

Background

The accused faced a charge of murdering his father, with the alleged offence occurring on 16 August 2018. The prosecution alleged that he struck his father multiple times before obtaining a knife and stabbing him in the neck on several occasions. The cause of death was the combined effect of stab wounds to the neck and cranio-facial trauma.

Following his arrest, the accused participated in a recorded police interview in which his responses were markedly disorganised. His answers included phrases such as "He whimiscalised me," references to "the sexual genome," and an explanation that his father being struck was connected to milk and soundwaves. Those statements raised immediate concerns about his mental state at the time of the alleged offence and thereafter.

Both the defence and prosecution retained independent psychiatrists to assess whether the accused was fit to stand trial. This fitness inquiry proceeded before Hamill J in December 2019.

  • Whether the accused met the minimum standards required under the Presser test to be fit to stand trial.
  • Whether the accused's fitness had changed over time following psychiatric treatment, and what his fitness was at the time of the December 2019 hearing.
  • Which of the individual Presser criteria the accused was unable to satisfy.

Decision

Hamill J applied the well-established Presser criteria, drawn from R v Presser [1958] VR 45 and confirmed by the High Court in Kesavarajah v The Queen (1994) 181 CLR 230. Those criteria require an accused to be able, at a minimum, to understand the charge, plead to it, follow the proceedings, understand the effect of evidence against them, and instruct their legal representatives. The High Court in Kesavarajah added that an accused's capacity to maintain focus across the duration of a trial is also a relevant consideration.

The court noted that the accused's fitness had fluctuated significantly. Both psychiatrists initially concluded in mid-2019 that he was unfit to stand trial. After a period of psychiatric treatment within the Corrective Services system, both experts revised their opinions in November 2019 and assessed him as fit. However, by the time of the December 2019 hearing, his condition had again deteriorated.

Hamill J found that, at the time of the hearing, the accused could not satisfy almost all of the Presser criteria. The accused demonstrated no real understanding that the proceedings were an inquiry into whether he did what he was charged with, describing it instead as an inquiry into whether he was a good or bad person. He showed no capacity to follow proceedings in the courtroom, no ability to understand the effect of evidence against him, and his capacity to instruct his legal representatives was severely compromised. His ability to understand the available pleas beyond a "not guilty by reason of mental illness" plea was also doubtful.

The court acknowledged that the accused's condition might improve with the drug Clozapine, but found that his fitness at that moment was clearly insufficient. Accordingly, the court found the accused unfit to stand trial and referred the matter under the Mental Health (Forensic Provisions) Act 1990 (NSW).

Orders Made

  • The accused was found unfit to be tried.
  • The matter was referred to the Mental Health Review Tribunal pursuant to s 14(a) of the Mental Health (Forensic Provisions) Act 1990 (NSW).
  • The accused was remanded in custody until 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 was directed to provide the Tribunal within 21 days with copies of the findings and judgment, the orders, the transcript of proceedings, and the exhibits.
  • Corrective Services was directed not to remove the accused from AVL facilities until he was spoken to by his lawyers.

Key Takeaways

  • The Presser test, confirmed by the High Court in Kesavarajah, remains the governing standard for fitness to stand trial in New South Wales, requiring an accused to meet certain minimum cognitive and communicative thresholds before a trial can proceed fairly.
  • Fitness to stand trial is not a static assessment: this decision illustrates that an accused's fitness can improve under treatment and then deteriorate again, requiring the court to assess fitness at the time of the hearing rather than at any earlier point.
  • Where an accused cannot understand the nature of the proceedings, cannot follow what occurs in the courtroom, and cannot meaningfully instruct legal representatives, almost all of the Presser criteria will point toward a finding of unfitness.
  • Under the Mental Health (Forensic Provisions) Act 1990 (NSW), a finding of unfitness triggers referral to the Mental Health Review Tribunal, which then determines the appropriate course for the accused's ongoing management and care.
  • The Supreme Court noted some uncertainty about whether an inability to exercise the right to challenge jurors carries the same weight today as it did when Presser was decided in 1958, given that counsel can exercise such challenges on an accused's behalf.

Legislation and Cases Referenced

Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 5, 14, 16

Cases:
- R v Presser [1958] VR 45
- Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41
- R v Billy Krey [2019] NSWSC 762