Citation: [2020] NSWSC 855
Court: Supreme Court of New South Wales
Date: 6 July 2020
Judge(s): R A Hulme J
Background
The accused, a 74-year-old man, was charged with the murder of his wife. It was alleged that on 4 February 2019 he stabbed her with a kitchen knife while she was asleep, then washed the knife, washed his hands, and drove to a local police station to hand himself in.
A question arose as to whether the accused was fit to stand trial. Both the Crown and senior counsel for the accused agreed he was not fit, but the Mental Health (Forensic Provisions) Act 1990 (NSW) nonetheless required a formal inquiry to be conducted by the Court.
Expert reports from a psychologist and two forensic psychiatrists were tendered without objection, and both parties provided written submissions. The Court proceeded to determine the fitness question on the balance of probabilities.
Legal Issues
- Whether the accused met the minimum standards for fitness to be tried, as formulated in R v Presser [1958] VR 45 and confirmed by the High Court in Kesavarajah v The Queen (1994) 181 CLR 230
- What orders should follow under the Mental Health (Forensic Provisions) Act 1990 (NSW) if the accused was found unfit
Decision
Issue 1: Fitness to be tried
Three expert witnesses addressed the accused's mental state. Dr Cantali, a psychologist, found substantially impaired cognitive ability and a mild intellectual disability, though she did not address fitness directly (at [8]). Dr Martin, a forensic psychiatrist, diagnosed psychotic depression or schizophrenia and concluded the accused was confused about whether his wife was alive or dead, would be unable to follow proceedings, give instructions, consider defences, or challenge evidence (at [9]-[11]). Professor Greenberg, also a forensic psychiatrist, diagnosed schizoaffective disorder and reached the same conclusions on fitness, further noting it was unlikely the accused would become fit within the next 12 months (at [15]-[17]).
Hulme J found the evidence compelling. Although the accused understood the nature of the charges and could give a clinical account of events, he appeared to experience ongoing delusions and remained confused as to whether the deceased was actually dead (at [18]). The Court was not satisfied the accused could follow the trial, understand the evidence, instruct his lawyers, or comprehend the defences available to him (at [19]-[20]).
On the balance of probabilities, the Court found the accused unfit to be tried (at [21]).
Orders Made
- The accused is unfit to be tried.
- He is referred to the Mental Health Review Tribunal under s 14(1)(a) of the Mental Health (Forensic Provisions) Act 1990 (NSW).
- The proceedings are adjourned pending the Tribunal's determination, under s 14(1)(b)(i).
- The accused is remanded in custody until any determination of the Mental Health Review Tribunal under s 16 is given effect.
- The Supreme Court Registry is to provide the Tribunal with the judgment, all three expert reports, and the Crown Case Statement.
- In light of the accused's advanced age and state of ill-health, the Court expressed it would be desirable for the Tribunal to expedite its determination.
Key Takeaways
- A formal judicial inquiry into fitness to be tried is required under the Mental Health (Forensic Provisions) Act 1990 (NSW) even where both parties consent to a finding of unfitness.
- The Presser test, adopted by the High Court in Kesavarajah, requires that an accused be able to follow proceedings, understand evidence, instruct counsel, and comprehend the defences open to them; an accused who cannot meet these standards on the balance of probabilities is unfit to be tried (at [5]-[7], [19]-[21]).
- Fitness to be tried is not precluded merely because an accused understands the nature of the charge or can recount relevant events; the broader cognitive and psychiatric capacity to participate meaningfully in a trial must also be established (at [18]).
- Where an accused is found unfit, the court refers the matter to the Mental Health Review Tribunal and may remand the accused in custody pending the Tribunal's determination, as occurred here under ss 14 and 16 of the Act.
- The Supreme Court noted, without making it a formal order, that the Tribunal should consider expediting its review given the accused's advanced age and serious ill-health (at [23]).
Legislation and Cases Referenced
Legislation
- Mental Health ( Forensic Provisions) Act 1990 (NSW) , ss 6, 14, 16
Cases
- Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41
- R v Presser [1958] VR 45