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Supreme Court 5 March 2020

R v Billy Krey (No 2)

[2020] NSWSC 199

Homicide
CRIMINAL LAW FITNESS TO STAND TRIAL ACCUSED CHARGED WITH MURDER INTELLECTUAL DISABILITY CHANGE IN ACCUSED’S CONDITION CHANGE IN MEDICATION

Citation: R v Billy Krey (No 2) [2020] NSWSC 199
Court: Supreme Court of NSW
Date: 5 March 2020
Judge: Hamill J

Background

The accused faced a charge of murder. In June 2019, following a fitness hearing in May of that year, Hamill J found him unfit to stand trial, primarily because his intellectual disability and severe verbal and short-term memory problems prevented him from adequately following court proceedings and giving meaningful instructions to his lawyers: R v Billy Krey [2019] NSWSC 762.

Following that finding, the matter was referred to the Mental Health Review Tribunal under the Mental Health (Forensic Provisions) Act 1990 (NSW). In September 2019, the Tribunal found the accused fit to be tried, though it expressed "considerable reservations" and recommended that the trial be conducted with structured breaks and additional support measures.

In accordance with the Act, the matter returned to the Supreme Court for a fresh determination of fitness. The same three experts who gave evidence at the original hearing provided updated reports and gave brief oral evidence. The court's task was to assess the accused's current capacity against the criteria established in the Victorian case of R v Presser [1958] VR 45.

  • Whether the accused was, at the time of the second hearing, fit to stand trial on the murder charge, assessed against the Presser criteria
  • What weight should be given to updated expert opinions where the accused's condition had changed since the original fitness finding
  • What practical conditions and accommodations were necessary to ensure a fair trial, given the acknowledged limitations of the accused

Decision

All three experts who gave evidence changed their opinions, or maintained their updated views, in favour of a finding of fitness. Significantly, Dr Schafer, the neuropsychologist whose evidence Hamill J had found most compelling at the original hearing, revised her earlier opinion and concluded the accused was currently fit to stand trial. Her revised assessment was conditional on the Tribunal's recommended measures being implemented and on the accused continuing to engage with his legal team.

Hamill J noted that the accused had responded well to care and treatment while in custody, including a change in medication. Although his intellectual capacity had not materially improved, his overall condition had stabilised. Each expert addressed the Presser criteria, and the court found the accused satisfied those criteria as at the date of the second hearing.

The court acknowledged that its task was to assess fitness as it stood at the time of the hearing, not at some earlier point in time. Even accepting the "considerable reservations" expressed by both the Tribunal and the experts, Hamill J was satisfied that fitness had been established. The court made clear, however, that the trial would need to be conducted with significant accommodations for the accused's disabilities, including regular adjournments, the possible presence of a support person in the dock, and the possibility of the accused sitting outside the dock for greater access to his legal representatives.

Hamill J also made a number of practical recommendations directed at the list judge and trial judge, aimed at reducing disadvantage to the accused throughout the proceedings.

Orders Made

  • The accused was found fit to be tried
  • The matter was listed in the arraignment list before the Criminal List Judge on Friday, 20 March 2020
  • Hamill J recommended the accused remain in the Hamden area of the MRRC during the remand period
  • Hamill J recommended the trial be listed with priority, insofar as the Court could accommodate it
  • Hamill J strongly recommended the Legal Aid Commission consider favourably any application for substantially increased preparation time
  • Hamill J recommended the Court arrange real-time transcription at trial

Key Takeaways

  • A finding of unfitness to stand trial is not permanent. Where an accused's condition changes, the Mental Health Review Tribunal and the court may subsequently find that fitness has been established, even where the original finding was based on compelling expert evidence.
  • Fitness is assessed as at the date of the hearing before the court. Evidence and opinions from earlier proceedings remain relevant context, but the court's determination must reflect current capacity.
  • Under the Presser criteria, an accused with an intellectual disability and significant memory impairment may nonetheless be found fit if, with appropriate accommodations, they can follow proceedings, provide instructions, and engage meaningfully with their legal representatives.
  • A fitness finding does not preclude recognition of substantial disadvantage. The Supreme Court made clear that the trial would need to accommodate the accused's disabilities through measures such as structured breaks, a support person in the dock, and real-time transcription.
  • Revised expert opinions carry significant weight in fitness determinations, particularly where the expert whose evidence was previously found most compelling has updated their view based on fresh assessment and changed circumstances.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), particularly s 16
- Crimes Act 1900 (NSW)

Cases
- R v Presser [1958] VR 45 (the source of the criteria for assessing fitness to stand trial)
- Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41
- R v Billy Krey [2019] NSWSC 762 (the earlier fitness determination in the same proceedings)
- R v Lelikan [2018] NSWSC 1933 (regarding practical arrangements for accused persons in the dock)