Citation: R v Pesamino [2020] NSWSC 767
Court: Supreme Court of New South Wales
Date: 19 June 2020
Judge(s): Cavanagh J
Background
The accused was charged with murdering one man and assaulting two others at Villawood on separate occasions in 2018. Following an initial fitness hearing in November 2018, Cavanagh J found the accused unfit to stand trial and referred him to the Mental Health Review Tribunal (the Tribunal) in accordance with Part 2 of the Mental Health (Forensic Provisions) Act 1990 (NSW).
The accused was detained at the Metropolitan Remand and Reception Centre (MRRC) while the Tribunal monitored his progress. In April 2020, the Tribunal determined that the accused had become fit to be tried and also confirmed that he continued to suffer from a mental illness.
Following the DPP's advice that it intended to proceed with the charges, the matter returned to Cavanagh J for a second, mandatory fitness inquiry under s 29 of the Act. Both the Crown and defence agreed the accused was now fit, but the court was still required to conduct its own inquiry and reach its own conclusion.
Legal Issues
- Whether the accused had, since the original finding of unfitness, become fit to be tried for the offences charged, as assessed against the criteria established in R v Presser [1958] VR 45 (the "Presser criteria")
- Whether the criminal proceedings could therefore continue under s 30 of the Mental Health (Forensic Provisions) Act 1990 (NSW)
Decision
Fitness to be tried: Cavanagh J applied the Presser criteria, as confirmed by the High Court in Kesavarajah v The Queen (1994) 181 CLR 230, to assess the accused's current mental state (at [11]). The court considered evidence from treating psychiatrist Dr Henderson and forensic psychiatrist Dr Martin, both of whom reported significant improvement since the initial unfitness finding (at [13]-[24]).
Improvement in mental state: The court found that the accused's improvement resulted from appropriate treatment and controlled use of medication in custody, consistent with earlier medical opinions that antipsychotic medication in a drug-free environment would likely produce improvement over time (at [25]). Although the accused still experienced some residual symptoms, including occasional voices and intermittent paranoia, his schizophrenia was stable and largely controlled (at [26]).
Functional capacity: The court was satisfied that the accused understood the nature of the charges against him, grasped the general purpose and function of the court, could discuss his defence options coherently, and had indicated to his treating doctor and to Dr Martin that he was considering a plea of mental illness (at [16]-[23], [28]). On that basis, the court found the accused fit to be tried for all offences charged (at [29]-[30]).
Orders Made
- The accused was found fit to be tried for the offences charged.
- The Tribunal was directed to be notified of the fitness finding.
- The proceedings were found to be permitted to continue under s 30(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW).
- The matter was listed for further directions in the Arraignments List on 3 July 2020.
Key Takeaways
- Even where both parties agree on the question of fitness, the Supreme Court is still required to conduct its own independent inquiry and form its own view before making a fitness finding under Part 2 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (at [9]).
- A finding of unfitness is not permanent. Where an accused's mental state improves sufficiently, a subsequent hearing can result in a finding of fitness, enabling criminal proceedings to resume (at [25], [29]-[30]).
- Controlled use of antipsychotic medication in a custodial environment, free from illicit drug use, was found on the evidence to be a material factor in the accused's improvement from an earlier state of unfitness (at [25]).
- Suffering from an ongoing mental illness, including residual psychotic symptoms, does not preclude a finding of fitness to be tried if the accused's condition is stable and the Presser criteria are otherwise met (at [26]-[29]).
- Under the statutory scheme, once the Supreme Court finds an accused fit to be tried, it must direct that the proceedings may continue and notify the Tribunal accordingly (at [29]-[30]).
Legislation and Cases Referenced
Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), Pt 2, ss 14, 16, 29, 30, 46, 47
Cases
- Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41
- R v Pesamino [2019] NSWSC 1559
- R v Presser [1958] VR 45