Citation: [2020] NSWDC 609
Court: District Court of New South Wales
Date: 9 October 2020
Judge(s): Haesler SC DCJ
Background
The accused was charged under s 33 of the Crimes Act 1900 with wounding with intent to cause grievous bodily harm, arising from a stabbing incident at a Fairy Meadow unit in November 2019. The alleged victim was the accused's father. The accused also sustained a stab wound that day.
Following arrest, the accused was refused bail and has remained in custody at hospital since. The matter was committed to the District Court for trial and listed for arraignment in June 2020.
Before any plea could be entered, a question arose as to whether the accused was fit to stand trial. A forensic psychiatrist had earlier reported that the accused, who has a long-standing diagnosis of treatment-resistant schizophrenia, lacked the capacity to instruct lawyers or make informed decisions about his plea. The court conducted a fitness hearing to determine whether the proceedings could continue.
Legal Issues
- Whether the accused met the minimum fitness requirements to be tried, as set out in Presser and adopted by the High Court in Kesavarajah and Ngatany
- Whether the accused's improvement in response to medication had brought him to the requisite standard of fitness
Decision
Issue 1: The applicable legal test
The fitness determination was made by the judge alone, as required by s 11 of the Mental Health (Forensic Provisions) Act 1990 (at [7]). The relevant standard is drawn from Presser and confirmed by the High Court: the accused must be able to understand and follow the proceedings, give appropriate instructions to counsel, and present a proper defence (at [11], [15]). These criteria represent the minimum requirements for a fair trial (at [15]).
Issue 2: Whether the accused was fit to be tried
Earlier in 2020, the accused had been assessed as unfit. At that time he lacked the capacity to make logical choices about his plea options and could not meaningfully assist his lawyers (at [5]). However, by the time of the hearing, both forensic psychiatrists had reached the same conclusion: the accused's condition had improved markedly following treatment with therapeutic doses of Clozapine (at [12]-[13]).
Dr Furst reported that the accused now understood his plea options, the role of the court and his lawyers, and the available defences including one based on mental illness (at [12]). Dr Eagle, following an audiovisual consultation in June 2020, found that despite persistent bizarre delusions, the accused had developed insight into his condition and could demonstrate a basic understanding of the trial process and instruct his lawyers as to his version of events (at [13]).
The court made its own independent assessment of the material and found that the accused satisfied the Presser criteria. Accordingly, the proceedings were to continue and the indictment could be presented for plea (at [16]).
Orders Made
- David Delaney is fit to be tried.
Key Takeaways
- The District Court confirmed that the fitness-to-be-tried determination is made by the judge alone under s 11 of the Mental Health (Forensic Provisions) Act 1990, and must identify the principles of law applied and the findings of fact relied upon (at [7]).
- A diagnosis of treatment-resistant schizophrenia, including persistent bizarre delusions, does not preclude a finding of fitness if the accused's condition has improved sufficiently through medication to meet the minimum Presser criteria (at [12]-[13]).
- Under the Presser and Kesavarajah standards, the threshold for fitness is the minimum necessary for a fair trial: the accused must be able to follow proceedings, give instructions, and advance a defence, not necessarily be free from all psychiatric symptoms (at [15]).
- Fitness to stand trial is not a static determination. The accused in this case moved from unfit to fit over the course of approximately three months following optimised psychiatric treatment (at [5], [12]).
- Where both the prosecution and defence accept expert opinion that an accused has become fit, the court nonetheless retains an independent obligation to make its own determination on the evidence (at [14]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Mental Health (Forensic Provisions) Act 1990
Cases
- Kesavarajah v The Queen (1994) 181 CLR 230
- Presser [1958] (1958) VR 45
- Ngatany v The Queen (1980) 147 CLR 1