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Supreme Court 17 September 2020

R v Degei

[2020] NSWSC 1267

Homicide
MENTAL HEALTH CRIMINAL PROCEEDINGS FITNESS TO BE TRIED PRESSER PRINCIPLES AGREEMENT OF PARTIES AND EXPERTS ACCUSED UNFIT TO BE TRIED

Citation: [2020] NSWSC 1267
Court: Supreme Court of New South Wales
Date: 17 September 2020
Judge(s): R A Hulme J

Background

The accused was charged with the murder of a woman at Carramar on 25 August 2018. The victim was fatally attacked after she approached the accused, who had been behaving erratically near her apartment block. The accused had a documented history of mental illness dating from at least 2017, including prior hospitalisations and treatment for psychosis.

A question arose as to whether the accused was fit to be tried for the offence. Both parties agreed that a fitness inquiry should be conducted under the Mental Health (Forensic Provisions) Act 1990 (NSW), and that it could be determined on the papers, relying on written submissions and expert psychiatric reports.

Legal Issues

  • Whether the accused met the fitness-to-be-tried standard established in R v Presser [1958] VR 45 and confirmed by the High Court in Kesavarajah v The Queen (1994) 181 CLR 230
  • Whether, on the balance of probabilities, the accused had sufficient capacity to follow proceedings, instruct his lawyers, and engage meaningfully in his trial

Decision

Fitness to be tried:

The court applied the Presser principles, which set out the minimum capacities an accused must possess to be tried, including the ability to understand the charge, follow proceedings, instruct counsel, and give evidence. The High Court's gloss in Kesavarajah that fitness must be maintained throughout the entire trial, not merely at its outset, was also noted (at [8]-[9]).

Two forensic psychiatrists examined the accused approximately one year apart. Dr Furst, who examined the accused in late 2018, diagnosed him with chronic and treatment-resistant schizophrenia and found that active psychosis, including religious and paranoid delusions and auditory hallucinations, prevented him from following or participating in proceedings, instructing his lawyers, or raising mental illness as a defence (at [11]-[15]). Professor Greenberg, examining the accused in early 2020, reached a broadly consistent conclusion, finding that although the accused had developed a rudimentary understanding of some trial concepts, persistent hallucinations and delusions would still prevent him from engaging in the trial, appreciating evidence, giving evidence himself, or properly instructing his representatives (at [16]-[19]).

Hulme J considered it significant that both experts independently reached the same core conclusion, despite examining the accused a year apart (at [21]). While the accused showed some improvement in his basic understanding of trial processes between the two examinations, that improvement did not extend to the capacities most critical to participation (at [20]-[21]).

The court found on the balance of probabilities that the accused was unfit to be tried (at [22]).

Orders Made

  • The accused is unfit to be tried.
  • He is referred to the Mental Health Review Tribunal under s 14(a) of the Mental Health (Forensic Provisions) Act 1990 (NSW).
  • The proceedings are adjourned pending any determination of the Mental Health Review Tribunal.
  • The accused is remanded in custody pending that determination.
  • The Supreme Court Registry is to provide the Mental Health Review Tribunal with copies of the judgment, both psychiatric reports, and the Crown Case Statement.

Key Takeaways

  • The Supreme Court confirmed that the Presser standard governs fitness inquiries in NSW, requiring an accused to possess, at minimum, the capacity to follow proceedings, instruct lawyers, and engage meaningfully throughout the trial, not just at its commencement.
  • Where two independent forensic psychiatrists, examining an accused a year apart, agree that active psychosis prevents participation in trial proceedings, that convergence carries significant weight in the court's fitness determination (at [21]).
  • Some measurable improvement in an accused's understanding of trial concepts between examinations does not, of itself, establish fitness, if the core incapacities identified by the Presser principles persist (at [20]-[21]).
  • Under s 6 of the Mental Health (Forensic Provisions) Act 1990 (NSW), the fitness inquiry is determined on the balance of probabilities (at [10]).
  • A finding of unfitness results in referral to the Mental Health Review Tribunal rather than a conclusion of the criminal proceedings, leaving open the prospect of future trial if the accused's condition improves sufficiently.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 6

Cases
- Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41
- R v Presser [1958] VR 45