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District Court 3 August 2021

R v Munday

[2021] NSWDC 374

Assault & violence
CRIME FITNESS TO BE TRIED MENTAL HEALTH CRIMINAL PROCEEDINGS PROCEDURE PERSON UNFIT TO BE TRIED

Citation: R v Munday [2021] NSWDC 374
Court: District Court of New South Wales
Date: 3 August 2021
Judge(s): Haesler SC DCJ

Background

The accused, a 54-year-old man who had lived in the same Lake Heights neighbourhood his entire life, was arrested in August 2020 and charged with 29 counts of intentionally causing a fire while being reckless as to its spread, contrary to section 203E(1) of the Crimes Act 1900. The charges related to fires lit on vacant residential blocks near his home between 2018 and 2020. The offence carries a maximum penalty of 21 years imprisonment.

The accused has an intellectual disability that constitutes a "cognitive disability" within the meaning of section 5 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (MHCIFP Act). Testing from 2011 placed his cognitive ability in the Extremely Low Range across both verbal and non-verbal measures.

Given the obvious difficulties the accused faced in understanding the charges against him, the question of his fitness to be tried was raised before the matter was first listed. The fitness hearing was conducted by Haesler SC DCJ at Wollongong District Court on 3 August 2021.

Legal Issues

  • Whether an inquiry into the accused's fitness to be tried should be conducted before the hearing of the substantive charges.
  • Whether the accused was unfit to be tried on the present indictment, applying the test under section 36 of the MHCIFP Act (mirroring the common law Presser test).
  • Whether the accused was likely to become fit to be tried within the next 12 months.
  • What consequences followed from findings of unfitness, including which procedural regime applied.

Decision

Issue 1: Whether a fitness inquiry should be conducted

The court determined that an inquiry into fitness should be conducted immediately, given the seriousness and number of charges and the nature of the accused's cognitive impairment (at [5]). The hearing proceeded at once under section 42(2) of the MHCIFP Act.

Issue 2: Whether the accused was unfit to be tried

Four expert witnesses provided evidence. Dr Greenfield found a severe learning difficulty with performance well below age-expected levels on literacy tasks (at [17]-[18]). Associate Professor Davies identified Mild Mental Retardation and a delusional disorder (at [19]). Dr Ashkar found significant deficits against all but one of the section 36 criteria and concluded the accused was clearly unfit due to his intellectual disability (at [21]). Dr Pulman's assessment was consistent with those earlier findings and she concluded, on balance, that the accused lacked the cognitive capacity to enter a plea, provide instructions to counsel, follow the proceedings, or understand the weight of evidence (at [22]-[23]). Both the Director of Public Prosecutions and defence counsel agreed the accused is and will remain unfit (at [24]).

Making his own independent assessment, Haesler SC DCJ found that the accused functions in the extremely low range intellectually, cannot grasp legal concepts such as "recklessness," cannot formulate a coherent defence, and is unable to instruct his lawyers in any meaningful way (at [28]). The court also considered whether modified trial procedures or support arrangements could address these deficits, but concluded that no special arrangements could resolve the issues given the number of charges, the likely length of trial, the range of issues, and the accused's level of incapacity (at [29]). The court accordingly found the accused unfit to be tried on the current indictment (at [30]).

Issue 3: Whether fitness would be restored within 12 months

Given the permanent nature of the accused's cognitive impairment and intellectual disability, the court was comfortably satisfied that his position would not change within the next 12 months (at [32]). This finding triggered the requirement that the matter proceed under the special hearing provisions in Division 3 of the MHCIFP Act (at [32]).

Issue 4: Next steps

Before a special hearing could proceed, the court noted that section 53 of the MHCIFP Act requires advice from the Director of Public Prosecutions about whether further proceedings will be taken on the 28 remaining counts in the indictment (at [33]-[34]). The proceedings were adjourned to 24 August 2021 pending that advice (at [34]).

Orders Made

  • A fitness inquiry was to be conducted and proceeded immediately.
  • The accused is unfit to be tried.
  • The accused is unlikely to become fit to be tried within the next 12 months.
  • The allegations are to be dealt with under Division 3 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (special hearing provisions).
  • Proceedings adjourned for mention to 24 August 2021 at Wollongong District Court.

Key Takeaways

  • The District Court confirmed that the fitness test under section 36 of the MHCIFP Act is not confined to specific enumerated grounds, and mirrors the common law Presser test, which requires a defendant to be able to understand and follow proceedings, give instructions, and present a proper defence (at [11], [25]).
  • Where expert evidence and both parties agree on unfitness, the court must still make an independent determination of fitness rather than simply adopting the expert conclusions (at [27]).
  • An intellectual disability that places a defendant in the Extremely Low cognitive range, and which prevents any meaningful comprehension of charges, legal concepts, or the trial process, can satisfy the threshold for unfitness even where modified procedures and support are considered (at [28]-[29]).
  • A finding that a defendant will not become fit within 12 months triggers the special hearing provisions under Division 3 of the MHCIFP Act, but the court cannot proceed with a special hearing until the Director of Public Prosecutions provides advice about whether further proceedings will be taken (at [32]-[33]).
  • Under section 46 of the MHCIFP Act, once a person is found unfit, a statutory presumption of ongoing unfitness applies until the contrary is established on the balance of probabilities (at [31]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Evidence Act 1995
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Cases
- Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41
- Ngatayi v The Queen (1980) 147 CLR 1; [1980] HCA 18
- R v Presser [1958] VR 45