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Supreme Court 4 March 2020

R v Stojic

[2020] NSWSC 170

Assault & violenceHomicideFirearms & weapons
CRIMINAL PROCEDURE FITNESS TO BE TRIED ACCUSED FIT TO BE TRIED

Citation: [2020] NSWSC 170
Court: Supreme Court of New South Wales
Date: 4 March 2020
Judge(s): Wright J

Background

The accused faced charges of murder, firearms offences, and prohibited weapons offences arising from an alleged shooting at Kingsgrove on 26 July 2017. He also faced separate aggravated assault charges being dealt with in the District Court. He had previously been found unfit to stand trial on multiple occasions, with the Mental Health Review Tribunal (MHRT) concluding in May 2019 that he was unlikely to become fit within 12 months.

The accused's condition was diagnosed as a schizoaffective disorder accompanied by persecutory delusions. The core concern was not his ability to understand the charges or court process, but rather the intensity of his delusional beliefs and their effect on his capacity to concentrate and give instructions to his legal representatives.

Following a period of assertive mental health treatment at Long Bay Hospital, treating and forensic psychiatrists reassessed the accused in late 2019 and early 2020. Both his treating psychiatrist and his legal team reported a marked improvement. The MHRT determined on 6 December 2019 that he was fit to stand trial, and the present fitness inquiry was conducted by Wright J on 2 March 2020, prior to arraignment.

  • Whether the accused currently met the minimum fitness criteria set out in R v Presser [1958] VR 45 (the "Presser criteria"), taking into account the likely length of the trial
  • Whether the residual impact of his schizoaffective disorder and persecutory delusions continued to render him unfit to stand trial

Decision

Wright J conducted the fitness inquiry under s 8(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW). The applicable legal standard is drawn from R v Presser, as endorsed by the High Court in Kesavarajah v The Queen (1994) 181 CLR 230. Those criteria require, among other things, that the accused be able to understand the charges, follow the proceedings, understand the substantial effect of evidence led against him, and give instructions to and communicate his version of events through his legal representatives.

The Court had before it the MHRT's December 2019 determination, a report from Dr Stephen Allnutt dated 20 January 2020, and a report from Professor David Greenberg dated 17 February 2020. All three sources concluded that the accused was fit to stand trial. The MHRT specifically noted that the accused's delusional beliefs had receded to the point where he could concentrate and confer meaningfully with his lawyers, a marked contrast to the preceding two years.

Both the Crown and counsel for the accused submitted that the accused was now fit. Defence counsel did not dispute any of the psychiatric or legal team observations about the accused's improved ability to give instructions and engage with his legal advisers.

Wright J found on the balance of probabilities that the accused was fit to stand trial on all charges in the indictment filed on 2 March 2020. The inquiry is non-adversarial under the MHFP Act and the onus of proof does not rest on any particular party.

Orders Made

  • The Court found the accused fit to be tried in respect of the offences in the indictment filed on 2 March 2020.
  • The proceedings were listed in the arraignments list before the Criminal List Judge on 6 March 2020, or such later date as the List Judge determined.

Key Takeaways

  • Fitness to stand trial is not a static determination. Under s 7 of the Mental Health (Forensic Provisions) Act 1990, the question may be raised at any time and on more than one occasion in the same proceedings, allowing a previously unfit accused to be found fit following treatment.
  • The Presser criteria set a minimum, not an elevated, threshold. An accused need not have the mental capacity to mount an able defence, but must have sufficient capacity to understand the charge, follow proceedings in a general sense, and communicate their version of events to counsel.
  • Where the central fitness concern is the intensity of delusional beliefs rather than a lack of understanding of the charges or court process, successful treatment reducing that intensity can restore fitness even if the underlying mental illness persists.
  • Convergent evidence from a treating psychiatrist, two independent forensic psychiatrists, and the accused's own legal representatives was central to the Court's finding, reinforcing the weight given to multiple consistent expert assessments.
  • A prior MHRT determination of fitness under ss 16, 46 and 47 of the MHFP Act does not itself resolve the court's inquiry, but it forms part of the evidence the court considers before making its own finding on the balance of probabilities.

Legislation and Cases Referenced

Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 7, 8, 10, 11, 12, 13, 14, 16, 46, 47

Cases:
- R v Presser [1958] VR 45; (1958) ALR 248
- Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41
- Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29
- R v Stojic [2018] NSWSC 1893