AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 11 March 2020

R v O’Brien

[2020] NSWDC 60

Theft & propertyFirearms & weaponsPublic order & justice offences
FITNESS HEARING PRESSER TEST AGREEMENT OF EXPERTS

Citation: R v O'Brien [2020] NSWDC 60
Court: District Court of New South Wales
Date: 11 March 2020
Judge(s): Bright DCJ

Background

The accused faced two charges of aggravated take and detain with intention of obtaining an advantage under section 86(2)(a) of the Crimes Act 1900. The Crown alleged that on 1 September 2017 the accused and an unknown co-offender detained two men by binding their wrists with cable ties and threatening them with a firearm, in order to obtain information about the location of the accused's excavator. Both complainants were released later the same day, and the matter was reported to police.

Following arraignment in January 2019, concerns about the accused's fitness to stand trial emerged at a May 2019 court appearance. The trial date was vacated, and the matter was relisted for a formal fitness inquiry under the Mental Health (Forensic Provisions) Act 1990.

The fitness inquiry took place on 16 December 2019 before Bright DCJ in the Gosford District Court. Two expert psychiatrists provided reports to assist the court in determining whether the accused met the minimum standards required to stand trial.

Legal Issues

  • Whether the accused was unfit to be tried by reason of mental illness or defect, assessed against the minimum standards established by the Presser criteria
  • Whether the evidence of the two expert psychiatrists supported a finding of unfitness on the balance of probabilities

Decision

The Presser Test

The court applied the test derived from R v Presser (1958) VR 45, as affirmed by the High Court in Kesavarajah v R (1994) 181 CLR 245. That test sets out minimum cognitive and communicative standards beneath which a criminal trial cannot proceed without the risk of unfairness and injustice to the accused (at [11]-[12]).

Expert Evidence

Dr Ellis assessed the accused and diagnosed alcohol use disorder and possibly stimulant use disorder. He was unable to reach definitive diagnoses regarding PTSD, mood disorder or personality disturbance, concluding that longitudinal observation in a drug- and alcohol-free environment was required (at [38]-[39]). Dr Ellis expressed the opinion that with appropriate treatment the accused would likely be fit within 12 months, but that without treatment, fitness was unlikely to improve (at [41]).

Dr Martin assessed the accused separately and noted that he answered irrelevantly to almost every question during the interview, and that he typically began drinking alcohol in the mornings (at [44]). Dr Martin concluded that it was unlikely a court would find the accused fit to stand trial, as he did not satisfy a number of the Presser criteria (at [50]). Both experts agreed on the primary diagnosis of alcohol use disorder and on the need for further longitudinal assessment in a controlled, forensic mental health setting (at [47], [51]).

Finding

Having regard to the expert evidence and its own findings on the individual Presser criteria, the District 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 the Tribunal with copies of the reports of Dr Martin and Dr Ellis, together with a copy of the judgment.
  • The proceedings were adjourned to 11 June 2020 for mention, with the accused excused if legally represented, in accordance with section 14(b) of the Mental Health (Forensic Provisions) Act 1990.

Key Takeaways

  • The Presser criteria, derived from R v Presser (1958) VR 45 and affirmed by the High Court in Kesavarajah v R (1994) 181 CLR 245, provide the governing standard for fitness-to-stand-trial determinations in NSW: an accused must meet certain minimum cognitive and communicative standards for a trial to proceed without unfairness or injustice (at [11]-[12]).

  • Where two expert psychiatrists agreed that the accused did not satisfy a number of the Presser criteria, the District Court was satisfied on the balance of probabilities that the accused was unfit to stand trial (at [50], [53]).

  • Alcohol use disorder, and associated cognitive and communicative impairment, can form the basis of an unfitness finding where it substantially affects an accused's ability to meet the Presser standards (at [38], [50]).

  • Both experts identified the need for longitudinal assessment in a controlled, substance-free forensic mental health setting before a definitive psychiatric diagnosis could be reached, illustrating the diagnostic complexity that substance use disorders can introduce in fitness inquiries (at [39], [51]).

  • Upon a finding of unfitness, section 14 of the Mental Health (Forensic Provisions) Act 1990 required the District Court to refer the matter to the Mental Health Review Tribunal and adjourn proceedings accordingly.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990
- Crimes Act 1900
- Bail Act 2013

Cases
- R v Presser (1958) VR 45
- Kesavarajah v R [1994] HCA 41; 181 CLR 245