Citation: R v Arbolino [2020] NSWDC 247
Court: District Court of New South Wales
Date: 22 May 2020
Judge: Bright DCJ
Background
The accused, a 39-year-old man, faced charges of three counts of sexual intercourse without consent, one count of attempted sexual intercourse without consent, and one alternative count of indecent assault, all alleged to have occurred on 15 December 2017. The alleged offending involved the accused making unwanted sexual contact with a disability carer who was attending to him at his supported accommodation.
In December 2013, several years before the alleged offending, the accused had sustained a severe traumatic brain injury in a motorbike accident. Following lengthy hospitalisation and rehabilitation, he required a power wheelchair and 24-hour care for daily living. His fitness to stand trial was raised by his legal representatives in November 2019, and the trial date was vacated to allow a fitness inquiry to proceed.
The fitness inquiry was conducted on 18 May 2020. By that time, all experts who had assessed the accused agreed that he was unfit to be tried.
Legal Issues
- Whether the accused satisfied the minimum standards for fitness to stand trial established in R v Presser (the "Presser criteria")
- Whether the accused's cognitive impairments were sufficiently severe to render him unfit on the balance of probabilities under the Mental Health (Forensic Provisions) Act 1990
Decision
Fitness to Stand Trial
Bright DCJ conducted the inquiry under the Mental Health (Forensic Provisions) Act 1990, which provides that fitness is determined by a judge alone, on the balance of probabilities, and not in an adversarial manner (at [8]-[9]). The applicable standard is whether the accused, because of mental defect, fails to meet the minimum criteria identified in R v Presser (1958) VR 45, as affirmed by the High Court in Kesavarajah v R (1994) 181 CLR 245, beneath which a trial cannot be conducted without the possibility of unfairness and injustice to the accused (at [13]-[14]).
Three independent experts assessed the accused: Dr Adams (psychiatrist), Ms Zingirlis (forensic psychologist), and Professor Greenberg (psychiatrist). All three concluded that the accused's clinical presentation was consistent with a neurocognitive disorder arising from his 2013 traumatic brain injury, and all three were of the opinion that he was unfit to be tried (at [40], [45], [49]). The disorder was found to be largely permanent and unlikely to improve significantly within 12 months (at [50]).
The court was satisfied that the accused could not understand the role of the prosecutor and was unable to retain that information even after it was explained to him in simple terms (at [47]). He also did not understand how to exercise his right to challenge jurors, and similarly could not retain an explanation of this process (at [47]). The court further found that the accused could not appreciate the substantial effect of evidence given in court, and would likely have difficulty instructing his legal counsel in a complex trial (at [48]).
Having regard to those findings against the Presser criteria, the court was satisfied on the balance of probabilities that the accused was unfit to be tried (at [53]).
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.
- The Registry was directed to provide copies of the reports of Dr Adams, Professor Greenberg, and Ms Zingirlis to the Tribunal, together with a copy of the judgment.
- The proceedings were adjourned to 26 June 2020 for mention, with the accused excused if legally represented.
Key Takeaways
- The District Court confirmed that the Presser criteria, as affirmed by the High Court in Kesavarajah v R, set the minimum threshold for fitness to stand trial: an accused who cannot meet those standards cannot be tried without the risk of unfairness or injustice (at [13]-[14]).
- A finding of unfitness does not require the accused to be incapable across all Presser criteria. Here, partial understanding of certain aspects of the proceedings was outweighed by significant deficits in others, including inability to recall explanations of the prosecutor's role and juror challenge rights (at [46]-[47]).
- Where all examining experts agree on unfitness, and the underlying condition is assessed as permanent, the balance of probabilities standard under section 6 of the Mental Health (Forensic Provisions) Act 1990 is more readily satisfied (at [6], [50], [53]).
- Under section 14 of the Act, a finding of unfitness mandates referral to the Mental Health Review Tribunal and prohibits the recommencement of proceedings, leaving the Tribunal to determine the accused's ongoing management (at [12]).
- Proposed adaptations to trial proceedings, such as additional breaks or support, do not automatically overcome a finding of unfitness where expert opinion holds those measures to be insufficient to address the severity of the impairment (at [44]).
Legislation and Cases Referenced
Legislation
- Crimes Act, 1900
- Mental Health (Forensic Provisions) Act, 1990
Cases
- R v Presser (1958) VR 45
- Kesavarajah v R (1994) 181 CLR 245; [1994] HCA 41