Citation: R v Denison (a pseudonym) [2020] NSWDC 267
Court: District Court of NSW
Date: 27 May 2020
Judge(s): Colefax SC DCJ
Background
The accused (referred to by the pseudonym "Denison") faced an indictment containing seven counts: five counts of assault occasioning actual bodily harm against his former wife, and two counts of sexual intercourse without consent. Before any plea was entered, the court conducted a fitness hearing under the Mental Health (Forensic Provisions) Act 1990 (NSW) to determine whether the accused was fit to stand trial.
Three psychiatrists examined the accused and provided reports. Two were retained by the defence and one by the Crown. All three agreed that the accused presented with a morbid delusional disorder of the jealousy type, known in the proceedings as "the primary diagnosis." The two defence experts concluded he was unfit to be tried; the Crown's expert concluded he was fit, even accepting the primary diagnosis.
The central question at the hearing was whether the court should accept the unanimous conclusion of all three psychiatrists that the accused suffered from the primary diagnosis, and consequently whether he was fit to be tried.
Legal Issues
- Whether the accused was fit to stand trial under the criteria established in R v Presser and Kesavarajah v The Queen
- Whether the court could reject the unanimous expert psychiatric opinion that the accused suffered from a delusional jealousy disorder
- What legal standard governs a court's power to depart from unanimous medical evidence in a fitness inquiry
Decision
Issue 1: Power to reject unanimous expert opinion
The court confirmed that a tribunal of fact is not bound to accept unanimous medical opinion, drawing on Taylor v R (1978). That power is not unlimited: the rejection must not be capricious (at [14]-[15]). The judgment identified two recognised grounds for rejection from Taylor: where the facts underlying the experts' opinions are not satisfactorily established, or where the reasoning steps used to form those opinions are not soundly taken (at [17]).
Issue 2: Whether the primary diagnosis was established
All three psychiatrists diagnosed the accused on the basis that his belief his wife was having an affair with a local real estate agent was so bizarre as to be delusional. The accused had relied on 12 specific matters in forming that belief (at [12]-[13]). The court examined those 12 matters and concluded that, taken together (with a possible exception for the seventh), they could rationally support an inference that the wife might have been having an affair (at [19]). Because the conclusion drawn by the accused appeared rational on the underlying facts, the court found that the reasoning steps taken by the psychiatrists in forming the primary diagnosis were unsound. Accordingly, the court rejected the unanimous expert opinion and found the primary diagnosis was not established (at [18]-[19]).
Issue 3: Fitness for trial
Having rejected the primary diagnosis, the court found the accused fit to stand trial (at [20]). The court added that, even if the primary diagnosis had been accepted, it would have followed the Crown expert Dr O'Dea's view and found the accused fit for trial in any event (at [21]).
Orders Made
- The accused is fit for trial, notwithstanding the unanimous opinion of three psychiatrists.
- The discrete proceedings in which the accused's son is the complainant are remitted to the Local Court for case conferencing.
Key Takeaways
- A court conducting a fitness inquiry under the Mental Health (Forensic Provisions) Act 1990 (NSW) is not bound to accept unanimous psychiatric opinion, provided the rejection is not capricious (at [14]-[15]).
- Two recognised bases for rejecting expert medical opinion are that the facts underlying the opinion are not satisfactorily established, or that the reasoning steps in forming the opinion are not soundly taken (at [17]).
- Where the facts on which psychiatrists relied to diagnose a delusional disorder were themselves capable of supporting a rational inference, the District Court found sufficient grounds to reject the diagnosis entirely (at [18]-[19]).
- Fitness hearings under the Act are non-adversarial, which can place the court in an unusual position when experts are divided only on their ultimate conclusions rather than their factual premises (at [8]).
- An alternative finding on the merits of fitness remained available: even accepting the primary diagnosis, the court indicated it would have followed the Crown expert's reasoning and found the accused fit for trial regardless (at [21]).
Legislation and Cases Referenced
Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW): ss 5, 6, 9, 10, 11, 12, 13, 13A
Cases
- R v Presser [1958] VR 45; Kesavarajah v The Queen (1994) 181 CLR 230; Taylor v R (1978) 22 ALR 599