Citation: R v Wright [2020] NSWDC 162
Court: District Court of New South Wales
Date: 1 May 2020
Judge(s): Bright DCJ
Background
The accused faced four criminal charges on indictment in the Gosford District Court. He had been in custody since his arrest on 17 September 2018 and had not been arraigned because a question arose about his fitness to stand trial.
A fitness inquiry was conducted on 28 April 2020. The accused had a complex background including a difficult childhood, reported illiteracy, diagnosed ADHD and Bipolar Disorder, a lengthy history of substance abuse, and a recorded IQ of 69. Two forensic experts, Dr Chew and Dr Pulman, assessed him at different points and provided reports that were tendered at the inquiry.
Legal Issues
- Whether the accused was fit to be tried, assessed by reference to the Presser criteria under the Mental Health (Forensic Provisions) Act 1990 (NSW)
- Whether the accused's intellectual disability and associated deficits met the threshold of unfitness on the balance of probabilities
Decision
The applicable test: The court applied the Presser criteria, derived from R v Presser (1958) VR 45 and affirmed by the High Court in Kesavarajah v R [1994] HCA 41, to determine whether the accused, because of mental defect, failed to meet certain minimum standards below which a trial could not proceed without the possibility of unfairness and injustice to him (at [9]-[10]).
Expert findings: Both Dr Chew and Dr Pulman found that the accused was orientated to time, place and person, with no evidence of formal thought disorder, delusions, hallucinations or mania (at [31]). However, Dr Pulman's assessment using the Wechsler Adult Intelligence Scale revealed significant deficits in processing speed and working memory (at [32]). The two experts agreed in their conclusions about the accused's fitness.
Intellectual disability: The court was satisfied that the accused met the criteria for mild intellectual disability, and that this disability would impact significantly upon his capacity to participate in a trial (at [37]). His history included cannabis use from age seven, methamphetamine from age sixteen, prolonged alcohol and benzodiazepine use, diagnosed ADHD and Bipolar Disorder, and a recorded IQ of 69 (at [23]-[28]).
Finding of unfitness: On the balance of probabilities, the court found the accused unfit to be tried (at [38]).
Orders Made
- The accused was found unfit to be tried for the offences
- The matter was referred to the Mental Health Review Tribunal in accordance with section 14(a) of the Mental Health (Forensic Provisions) Act 1990 (NSW)
- The Registry was directed to provide the reports of Dr Chew and Dr Pulman, together with the judgment, to the Mental Health Review Tribunal
- Proceedings were adjourned to 28 May 2020 for mention, and the accused was remanded in custody in accordance with section 14(b)(i) and (iii) of the Mental Health (Forensic Provisions) Act 1990 (NSW)
Key Takeaways
- The Presser criteria, as affirmed by the High Court in Kesavarajah v R, set the minimum standards a person must meet to stand trial; failure to meet those standards due to mental defect renders a trial impermissible without the risk of unfairness and injustice to the accused (at [9]-[10]).
- Mild intellectual disability, where established on the evidence, can itself constitute sufficient grounds for a finding of unfitness to stand trial, particularly where it significantly impairs capacity to participate in proceedings (at [37]).
- The absence of acute psychiatric symptoms such as formal thought disorder, delusions, or hallucinations does not preclude a finding of unfitness; cognitive deficits identified through standardised testing may independently satisfy the Presser threshold (at [31]-[32], [37]-[38]).
- Where both forensic experts agree on a finding of unfitness, that agreement carries significant weight, and the District Court here found itself satisfied on the balance of probabilities on that basis (at [38]).
- A finding of unfitness under the Mental Health (Forensic Provisions) Act 1990 (NSW) triggers a mandatory referral to the Mental Health Review Tribunal rather than a continuation of ordinary criminal proceedings.
Legislation and Cases Referenced
Legislation
- Crimes Act, 1900
- Mental Health (Forensic Provisions ) Act, 1990
Cases
- Kesavarajah v R [1994] HCA 41; 181 CLR 245.
- R v Presser (1958) VR 45