Citation: [2020] NSWDC 418
Court: District Court of New South Wales
Date: 1 July 2020
Judge(s): P Taylor SC DCJ
Background
The accused was charged with one count of aggravated robbery arising from an incident at an ATM in Haymarket on 24 March 2019. The alleged offending involved the accused grabbing cash and a wallet from a victim at the ATM, striking the victim several times and causing him to fall, then fleeing before being stopped by bystanders and police.
A question about the accused's fitness to plead was first raised at committal. The District Court conducted a formal fitness determination under the Mental Health (Forensic Provisions) Act 1990, with the accused appearing by audio-visual link from custody.
The accused also sought a variation of previously granted bail conditions, which he had been unable to meet, primarily because his proposed residential address was no longer available and the required surety could not be arranged.
Legal Issues
- Whether the accused was fit to be tried for the offence of aggravated robbery, applying the standard set out in R v Presser and affirmed by the High Court in Kesavarajah v R
- Whether the accused's bail conditions should be varied to allow him to enter into bail
Decision
Issue 1: Fitness to be tried
The applicable test for fitness to be tried, drawn from R v Presser and confirmed by the High Court, requires an accused to meet certain minimum standards of understanding and capacity so that a trial can proceed without unfairness or injustice (at [3]). Under the Mental Health (Forensic Provisions) Act 1990, the determination is made by a judge alone on the balance of probabilities, without any onus resting on either party (at [2]).
Two psychiatrists gave evidence: Dr Dayalan and Professor Greenberg. Both concluded the accused was unfit to be tried, though for somewhat different reasons. Professor Greenberg focused specifically on the accused's inability to appreciate the substantial effect of evidence given in court. Dr Dayalan identified a wider range of unsatisfied Presser criteria, including poor understanding of the consequences of a plea, superficial understanding of court proceedings, inconsistent responses, inability to follow proceedings, unreliable history-giving, thought disorder, and inability to instruct counsel or present a defence (at [11]).
The Court noted that all Presser criteria must be satisfied for an accused to be fit to stand trial, meaning the precise divergence between the two experts on individual criteria required no resolution. At minimum, both experts agreed the accused could not appreciate the substantial effect of evidence against him (at [14]). The Crown and defence were also in agreement on the question of unfitness (at [12]). Although the accused had recently demonstrated some awareness and desire to obtain bail, no evidence contradicted the psychiatric reports (at [13]). The Court accepted the experts' conclusions and found the accused unfit to be tried (at [15]).
Issue 2: Bail variation
The accused had previously been granted bail but could not enter into it because his proposed residential address was no longer suitable and no acceptable surety for $500 could be found (at [16]). Both the Crown and defence agreed on a set of proposed variations. The Court accepted these as appropriate, noting they were not a substantial departure from the original conditions but rather necessary adjustments to reflect the change of address and to make bail conditions practicable (at [20]).
Orders Made
- The accused is found unfit to be tried for the offence of aggravated robbery.
- Pursuant to s 14(a) of the Mental Health (Forensic Provisions) Act 1990, the accused is referred to the Mental Health Review Tribunal.
- Copies of the psychiatric reports are to be provided to the Tribunal.
- The matter is adjourned for mention to 6 November 2020 before the list judge, pursuant to s 14(b) of the Act.
- Fresh bail granted by consent on existing conditions, varied as follows:
- Residence amended to a new address.
- Reporting obligation changed from Penrith Police Station to Blacktown Police Station.
- Acceptable person surety reduced from $500 to $100 (without security).
- Self-surety condition removed.
- If bail is not entered, a s 77 order to issue for the accused to appear by audio-visual link on the next occasion.
Key Takeaways
- The District Court confirmed that all of the Presser criteria must be satisfied for an accused to be fit to stand trial; an incapacity to meet even one criterion is sufficient to render the accused unfit (at [14]).
- Where two psychiatric experts reach the same ultimate conclusion on fitness, a court need not resolve divergences between them on individual Presser criteria if the agreed incapacity is, of itself, determinative (at [14]).
- Under the Mental Health (Forensic Provisions) Act 1990, a finding of unfitness to be tried requires the court to refer the accused to the Mental Health Review Tribunal (at [2], [15]).
- An accused's recent demonstration of some apparent awareness, such as expressing a desire to obtain bail, does not of itself constitute evidence sufficient to displace detailed psychiatric opinion on unfitness (at [13]).
- Bail conditions can be varied where changes of address and surety arrangements render the original conditions impracticable, provided the variations are not a substantial departure from the original terms and both parties consent (at [20]).
Legislation and Cases Referenced
Legislation
- Mental Health (Forensic Provisions) Act 1990 , s 14
Cases
- Kesavarajah v R (1994) 181 CLR 230; [1994] HCA 41
- R v Presser [1958] VR 45; [1958] ALR 248