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District Court 28 October 2020

R v Fuller

[2020] NSWDC 649

Sexual offences
CRIME — INDECENT ASSAULT CHILD UNDER 10 GUILTY PLEA IN LOCAL COURT COMMITTAL FOR SENTENCE FITNESS HEARING

Citation: R v Fuller [2020] NSWDC 649
Court: District Court of New South Wales
Date: 28 October 2020
Judge: Haesler DC DCJ

Background

The accused had been charged with four counts of indecent assault on a child under 10 years of age, alleged to have occurred in 1981 or 1982 on the NSW South Coast. The charges were laid in September 2019 and related to offences committed when the complainant was aged six or seven. The accused was granted bail after his arrest.

In March 2020, following negotiations under Chapter 3 of the Criminal Procedure Act 1986, the accused entered guilty pleas to two counts in the Local Court. Those pleas were accepted by a Magistrate and the matter was committed to the District Court at Bega for sentence. It was also agreed that guilt would be admitted to the remaining two counts, to be dealt with on a Form 1.

Before the sentence proceedings commenced, the accused's solicitor raised concerns about his fitness to participate in the District Court proceedings. The matter was adjourned to allow a formal fitness inquiry to be conducted, and two forensic psychiatrists were retained, one by each party.

  • Whether the question of fitness to be tried can be raised at the sentence stage, after guilty pleas have already been entered in the Local Court
  • Whether the accused had the cognitive and psychiatric capacity to adhere to his earlier guilty pleas in the District Court
  • Whether the accused met the minimum standards for fitness to be tried as set out in Presser v R and confirmed by the High Court
  • What procedural orders follow from a finding of unfitness under the Mental Health (Forensic Proceedings) Act 2000

Decision

Haesler DC DCJ conducted the fitness inquiry as required by s 11(1) of the Mental Health (Forensic Proceedings) Act 2000, which provides that the question of unfitness is to be determined by a judge alone. His Honour noted that although the accused had entered guilty pleas in the Local Court, he had not yet been arraigned in the District Court, had not adhered to those pleas before that court, and had not signed the Form 1. The fitness question was therefore properly before the District Court.

Both forensic psychiatrists, Dr Christopher Cocks (retained by the defence) and Dr Kerry Eagle (retained by the Crown), agreed that the accused was presently unfit to be tried or to adhere to his earlier guilty pleas. Their opinions were consistent with earlier psychological testing from 2006 to 2007, which recorded cognitive performance comparable to dementia and an extremely low intellectual level. Dr Cocks diagnosed the accused with a Major Neurocognitive Disorder and Major Depressive Disorder, finding that he lacked the capacity to retain and weigh information, understand the charges, give a consistent account of events, follow proceedings, or meaningfully instruct his lawyer. Dr Eagle shared those diagnoses in substance and, applying the Presser and Kesavarajah criteria, reached the same overall conclusion on fitness.

His Honour noted the obligation to make an independent determination rather than simply adopt the experts' agreed position, as confirmed by the High Court in Eastman v The Queen and the Court of Criminal Appeal in R v Rivkin. Having reviewed the evidence, his Honour was satisfied that the accused's longstanding cognitive deficits and depressive illness meant he could not properly enter a plea, give instructions, or make a defence, whether in person or through his lawyers.

The District Court found the accused unfit to be tried and, as required by s 14(1) of the Forensic Proceedings Act, determined that the proceedings could not continue. The matter was referred to the Mental Health Review Tribunal to determine whether the accused would become fit within 12 months.

Orders Made

  • The accused was found unfit to be tried on all four counts under s 61E(1) of the Crimes Act 1900
  • The matter was referred to the Mental Health Review Tribunal under s 16 of the Mental Health (Forensic Proceedings) Act 2000
  • The Registrar was directed to forward a copy of the judgment and all exhibits, including the three expert reports, to the Tribunal
  • The matter was fixed for call-over at the Chief Judge's country call-over on 24 March 2021 to ascertain the Tribunal's determination and the position of the Director of Public Prosecutions
  • Bail was continued on existing conditions (weekly reporting to Batemans Bay Police Station; no contact with the complainant) with two additional conditions: attend the Mental Health Review Tribunal as directed and obey any directions of the Tribunal

Key Takeaways

  • A fitness to be tried inquiry can be raised at the sentence stage in the District Court, even where the accused has already entered guilty pleas in the Local Court, provided the question is raised on a bona fide basis under the Mental Health (Forensic Proceedings) Act 2000.
  • Where an accused has not yet been arraigned or adhered to earlier pleas in the sentencing court, the fitness inquiry extends to whether the accused has capacity to adhere to those pleas, not merely capacity to conduct a trial.
  • Under the Presser criteria, an accused must have sufficient understanding to comprehend the proceedings, give instructions to lawyers, and make or admit to a charge in an informed way; cognitive deficits that prevent any of these functions can ground a finding of unfitness.
  • Although both experts agreed on the outcome, the District Court emphasised that a judge must make an independent determination rather than simply adopt expert consensus, consistent with the approach required by Eastman v The Queen and R v Rivkin.
  • A finding of unfitness does not terminate the proceedings permanently; the Mental Health (Forensic Proceedings) Act 2000 requires referral to the Mental Health Review Tribunal to assess whether the person may become fit within 12 months, and the court retains oversight through subsequent listings.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW)
- Crimes Act 1900 (NSW), s 61E(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Criminal Procedure Act 1986 (NSW), Chapter 3, s 97
- Mental Health (Forensic Proceedings) Act 2000 (NSW), ss 5, 7, 8, 10, 11, 14, 16

Cases
- Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29
- Hofer v R [2019] NSWCCA
- Kesavarajah v The Queen (1994) 181 CLR 230
- Ngatayi v The Queen (1980) 147 CLR 1
- Presser v R [1958] VR 45
- R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7