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District Court 28 October 2021

R v Vosota

[2021] NSWDC 621

Assault & violence
CRIMINAL LAW FITNESS HEARING NOT FIT TO BE TRIED MENTAL HEALTH OR COGNITIVE IMPAIRMENT

Citation: R v Vosota [2021] NSWDC 621
Court: District Court of New South Wales
Date: 28 October 2021
Judge: Grant DCJ

Background

The accused was charged with intentionally causing grievous bodily harm contrary to s 33 of the Crimes Act 1900. He had been committed for trial specifically so that the question of his fitness to be tried could be determined. The matter came before the District Court under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, which replaced the former Mental Health Forensic Provisions Act 1990 and commenced on 27 March 2021.

Two forensic psychiatrists assessed the accused. Both diagnosed him with a severe, chronic, and largely untreated schizophrenic illness. Their evidence formed the basis of the fitness inquiry.

  • Whether the accused was unfit to be tried for the offence, assessed against the statutory fitness test in s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020
  • Whether, if unfit, there was a reasonable prospect the accused would become fit to be tried within the next twelve months
  • What orders were appropriate following a finding of unfitness

Decision

Grant DCJ conducted the fitness inquiry in accordance with the procedures set out in s 44 of the Act. The inquiry is determined by a judge alone, without an adversarial structure, and no onus of proof rests on any party. The court is required to consider whether any modifications to the trial process could assist the accused to participate effectively.

The statutory test in s 36 provides that a person is unfit to be tried if, because of a mental health or cognitive impairment, they cannot perform one or more of a list of specified functions. These include understanding the charge, following the proceedings, instructing their legal representative, and deciding what defence to rely on. The list is non-exhaustive. This test codifies the principles from the Victorian case R v Presser [1958] VR 45, as applied by the High Court in Kesavarajah v The Queen (1994) 181 CLR 230.

Dr Furst, who assessed the accused in April 2021, formed the opinion that while the accused could superficially describe the charges and court process, his untreated schizophrenia manifested in paranoid and delusional thinking about the alleged offence. Critically, Dr Furst concluded the accused had no insight into his illness and could not properly instruct counsel, particularly in relation to the likely availability of a mental illness defence. Dr Furst also noted that trial modifications would not address these deficits, as the accused was of approximately average intelligence and the unfitness related to mental illness rather than cognitive capacity.

Dr O'Dea, who assessed the accused in August 2021, reached the same conclusion. He observed that the accused became disjointed and disorganised in his thinking when discussing both the alleged offending and court proceedings. Both psychiatrists considered there was a reasonable prospect the accused could become fit within twelve months with appropriate treatment. Grant DCJ accepted this evidence and found the accused was not currently fit to be tried, while remaining satisfied on balance that fitness might be achieved within twelve months.

Orders Made

  • The accused was referred to the Mental Health Review Tribunal for review under s 49(1) of the Act
  • The accused was remanded in custody under s 47(2)(d)
  • The accused was ordered to be transferred to a secure psychiatric facility for assessment and treatment under s 42(2)(e)
  • The reports of both psychiatrists were ordered to be served on the Commission for Corrective Services and Justice Health
  • A copy of the judgment and both psychiatric reports were directed to be forwarded to the Registrar of the Mental Health Review Tribunal

Key Takeaways

  • The District Court applied the fitness test now codified in s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, which formalises the Presser criteria in statute for NSW District and Supreme Court proceedings.
  • A superficial ability to describe charges or court roles does not, of itself, establish fitness; the court found that delusional thinking about the alleged offence, combined with a complete lack of insight into the illness, was sufficient to render the accused unable to properly instruct his legal representative.
  • Under s 44(5), the court considered whether trial modifications could address any deficits, but accepted expert opinion that such modifications were inapposite where the unfitness stemmed from active psychotic illness rather than intellectual disability.
  • Where a finding of unfitness is made and the court is satisfied on balance that the accused may become fit within twelve months, the Act contemplates referral to the Mental Health Review Tribunal and transfer to a secure psychiatric facility rather than an immediate special hearing.
  • The fitness inquiry under the 2020 Act is explicitly non-adversarial, with no onus of proof on any party, and the judge must set out both the principles of law applied and the findings of fact relied upon in the determination.

Legislation and Cases Referenced

Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 36, 42, 44, 47, 49
- Crimes Act 1900 (NSW), s 33
- Mental Health Forensic Provisions Act 1990 (NSW) (repealed)

Cases
- R v Presser [1958] VR 45 (Supreme Court of Victoria)
- Kesavarajah v The Queen (1994) 181 CLR 230 (High Court of Australia)