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District Court 15 April 2021

R v Hume (A pseudonym)

[2021] NSWDC 123

Sexual offences
UNFITNESS FITNESS TEST INQUIRY CRIMINAL PROCEDURE

Citation: R v Hume (A pseudonym) [2021] NSWDC 123
Court: District Court of New South Wales
Date: 15 April 2021
Judge(s): Grant DCJ

Background

The accused, referred to by the pseudonym "Hume," was an 86-year-old man arraigned in March 2021 on three counts of sexual intercourse with a child under 10, contrary to section 66A(1) of the Crimes Act 1900. The alleged offending occurred between June and October 2019, when the complainant (the accused's granddaughter) was six years old. The accused was on remand at Long Bay Correctional Centre at the time of the hearing.

Three psychological reports were placed before the court, each raising concerns about the accused's cognitive fitness to stand trial. Those reports prompted the court to conduct a fitness inquiry under the recently commenced Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

  • Whether the accused was unfit to be tried by reason of cognitive impairment, applying the statutory test in section 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020
  • Whether, if found unfit, the accused was likely to become fit to stand trial within the next 12 months
  • What procedural steps followed from those findings under the Act

Decision

Grant DCJ conducted the fitness inquiry as required by section 42 of the Act, which replaced the former Mental Health (Forensic Provisions) Act 1990 from 27 March 2021. The inquiry was not adversarial, with no onus of proof resting on any party. The judge determined the matter alone, consistent with section 44(1) of the Act.

The expert evidence came from two psychologists. Dr Susan Pulman's neuropsychological assessment (August 2020) identified markedly impaired working memory, extremely poor verbal learning and recall (placing the accused at the first percentile for word-list learning), and cognitive screening results suggesting early-stage dementia consistent with chronic small vessel ischaemic disease. Dr Pulman concluded the accused would likely struggle to follow trial proceedings or retain what was said in court, even with support. Jessica Pratley, a clinical and forensic psychologist, assessed the accused in January and April 2021. She agreed the test data supported an early dementia diagnosis, and added that the accused was susceptible to influence, lacked the capacity to sustain attention across a trial, and would not benefit from repeated presentations of information. Both experts described a trajectory of deterioration, not improvement.

Applying the section 36 statutory fitness test, which codifies the principles from R v Presser [1958] VR 45, Grant DCJ was satisfied on the balance of probabilities that the accused could not adequately follow proceedings, understand the substantial effect of evidence given against him, or instruct his legal representative effectively. The judge found the accused unfit to stand trial. Based on Ms Pratley's April 2021 report, the court was also satisfied the accused would not become fit within the next 12 months, and that his cognitive condition would worsen over time.

Orders Made

  • The accused was found unfit to be tried on the balance of probabilities.
  • The proceedings were adjourned pending advice from the Director of Public Prosecutions as to whether further proceedings would be taken, as required by section 53(2) of the Act before any special hearing under Division 3 could proceed.

Key Takeaways

  • The District Court applied section 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 for the first time in this matter, noting that it now provides an explicit statutory codification of the Presser fitness criteria, replacing the former Mental Health (Forensic Provisions) Act 1990.
  • A finding of unfitness does not require the accused to lack all cognitive capacity. Under section 36, inability to perform any one of the listed functions, by reason of cognitive impairment, is sufficient to establish unfitness.
  • Where a court finds an accused unfit and is satisfied they will not become fit within 12 months, the matter moves to Division 3 of the Act, which governs Special Hearings.
  • A Special Hearing cannot commence until the Director of Public Prosecutions has provided advice on whether further proceedings will be taken, per section 53(2) of the Act.
  • Neuropsychological expert evidence, including formal cognitive screening tools such as the ACE-III and standardised memory assessments, formed the evidential foundation for the fitness determination.

Legislation and Cases Referenced

Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 5, 36, 42, 44, 48, 53
- Mental Health (Forensic Provisions) Act 1990 (NSW) (repealed)
- Crimes Act 1900 (NSW), s 66A(1)

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