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Supreme Court 21 June 2019

R v Billy Krey

[2019] NSWSC 762

Homicide
CRIMINAL LAW FITNESS TO STAND TRIAL PRESSER TEST ACCUSED CHARGED WITH MURDER INTELLECTUAL DISABILITY VERBAL LAND MEMORY FUNCTIONS IMPAIRED

Citation: R v Billy Krey [2019] NSWSC 762
Court: Supreme Court of New South Wales
Date: 21 June 2019
Judge: Hamill J

Background

The accused, a 20-year-old man charged with the murder of his neighbour, appeared before the Supreme Court for a fitness hearing under the Mental Health (Forensic Provisions) Act 1990 (NSW). The prosecution alleged that the accused stabbed the deceased twelve times following a domestic argument in western Sydney in July 2017, causing death at the scene.

The accused had a severe and longstanding history of intellectual disability, foetal alcohol syndrome, PTSD, ADHD, epilepsy, and other conditions stemming from exposure to family violence and neglect from early childhood. Expert assessments placed his language skills at the level of a seven or eight year old.

Four expert witnesses, two called by each side, assessed the accused for the purpose of the fitness hearing. The prosecution's psychiatrist initially concluded the accused was fit to stand trial; the prosecution's psychologist had offered an opinion on fitness but had not been briefed to do so and had not assessed the relevant criteria. The defence experts concluded the accused was unfit. The prosecutor ultimately accepted that a finding of unfitness was open on the evidence.

  • Whether the accused met the criteria for fitness to stand trial under the Presser test, as adopted in New South Wales
  • Whether the accused could follow trial proceedings, understand the charges, give instructions to his lawyers, and participate meaningfully in his own defence
  • How to resolve a conflict between expert witnesses on the ultimate question of fitness
  • What orders were required following a finding of unfitness under the Mental Health (Forensic Provisions) Act 1990 (NSW)

Decision

Hamill J found the accused unfit to stand trial. The test applied was the Presser test, derived from R v Presser [1958] VR 45 and confirmed by the High Court in Kesavarajah v The Queen (1994) 181 CLR 230. That test requires an accused to be able, among other things, to understand the nature of the proceedings, follow and remember the evidence, understand the substantial effect of the evidence against them, and give adequate instructions to their lawyers.

The court found that the accused would be unable to follow or retain the evidence at trial, would not understand more complex aspects of the evidence or their implications, and would be unable to give instructions during a trial where variations or complexities arose. These deficits, the court held, were not capable of being remedied by any practical trial management procedures.

The conflict between the expert witnesses was resolved largely against the prosecution's position. The prosecution's psychologist had not addressed the relevant fitness criteria during her assessment, limiting the weight of her opinion on the ultimate question. The prosecution's psychiatrist had concluded fitness was established, but the prosecutor did not press that position at the hearing. The two defence experts, a forensic psychiatrist and a neuropsychologist, maintained their opinions that the accused was unfit, and their evidence was accepted.

Hamill J also noted several likely issues at any eventual trial, including the admissibility of two police interviews, the credibility of eyewitnesses, the question of intention, and a possible substantial impairment defence. A trial estimated at three weeks without the accused's difficulties was revised by the prosecutor to at least six weeks once appropriate accommodations were factored in. These observations informed the court's assessment of the practical demands a trial would place on the accused.

Orders Made

  • The accused is unfit to be tried.
  • The matter 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 in accordance with law.
  • The Registrar of the Supreme Court is directed to provide the Tribunal, within 21 days, with copies of the findings and judgment, the orders, the transcript, and the exhibits.

Key Takeaways

  • The Presser test remains the operative standard for fitness to stand trial in New South Wales, requiring an accused to be able to follow proceedings, understand the evidence and its implications, retain what they have understood, and give meaningful instructions to their legal representatives.

  • Where an expert witness has not been briefed to address fitness criteria and has not assessed the accused against those criteria, the weight of their opinion on the ultimate fitness question is substantially diminished.

  • Foetal alcohol syndrome, childhood neglect and abuse, and associated neurodevelopmental impairments can, in combination, produce cognitive deficits severe enough to render an accused unfit to stand trial for serious criminal offences.

  • A finding of unfitness under the Mental Health (Forensic Provisions) Act 1990 (NSW) does not discharge the accused but triggers referral to the Mental Health Review Tribunal and, ordinarily, continued remand pending the Tribunal's determination.

  • The practical demands of a specific trial, including its expected length, the complexity of the issues, and the nature of the evidence, are relevant to assessing whether an accused with cognitive limitations can participate meaningfully in their own defence.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 5, 6, 12, 13, 14, 15, 16, 33

Cases
- R v Presser [1958] VR 45
- Kesavarajah v The Queen (1994) 181 CLR 230
- Robinson v R [2008] NSWCCA 64
- R v Bugmy [2009] NSWSC 1215
- R v Bugmy [2010] NSWSC 1473
- R v Tarantello [2010] NSWSC 469
- R v Qaumi & Ors (No 56) [2016] NSWSC 1130