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District Court 17 December 2021

R v Beydoun

[2021] NSWDC 700

Sexual offences
MENTAL HEALTH FITNESS I NQUIRY WHERE OFFENDER SUFFERS FROM DEMENTIA NO ISSUE OF PRINCIPLE

Citation: R v Beydoun [2021] NSWDC 700
Court: District Court of New South Wales
Date: 17 December 2021
Judge: Abadee DCJ

Background

A 70-year-old man was charged on indictment with two counts of aggravated sexual assault and related charges of aggravated sexual touching, contrary to the Crimes Act 1900 (NSW). The aggravating circumstance relied upon by the Crown was that the complainant, a 28-year-old woman with an intellectual disability arising from Foetal Alcohol Syndrome, had a cognitive impairment at the time of the alleged offending.

Before any trial could proceed, the District Court was required to conduct an inquiry into whether the accused was fit to stand trial. The accused had a lengthy medical history involving serious brain injury sustained in a 1987 motor vehicle accident, with subsequent diagnoses of dementia, significant memory loss, frontal lobe impairment and marked intellectual deficits. Some earlier specialist opinions had raised the possibility of malingering or exaggeration of symptoms, though none excluded the existence of a genuine neurocognitive disorder.

The fitness inquiry was conducted under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), which replaced earlier legislation and codified the longstanding common law criteria from R v Presser.

  • Whether the accused had a "cognitive impairment" within the meaning of s 5 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).
  • Whether, because of that impairment, the accused was unfit to be tried under s 36 of the Act, assessed on the balance of probabilities.
  • Whether, if found unfit, the accused may become fit to be tried within 12 months of the finding, or will not become fit within that period, pursuant to s 47(1) of the Act.

Decision

The court found it uncontroversial that the accused has a cognitive impairment for the purposes of s 5 of the Act. His dementia, which the preponderance of expert evidence attributed to traumatic brain injury (with possible contributions from microvascular disease and hypoxic injury), constitutes a neurocognitive disorder expressly listed in s 5(2)(c). The court noted that while some experts had raised the possibility of malingering, all agreed this did not exclude the existence of a genuine neurocognitive disorder. The court did not consider it necessary to quantify the precise severity of the impairment.

Turning to fitness under s 36, the court accepted the evidence that the accused could not understand the proceedings, follow their course, instruct his legal representative, or give evidence. These incapacities mapped directly onto the statutory criteria in s 36, which themselves reflect the Presser criteria endorsed by the High Court in Kesavarajah v The Queen (1994) 181 CLR 230. The court accordingly found the accused unfit to stand trial.

On the s 47(1) question, the court found on the balance of probabilities that the accused will not become fit to be tried within 12 months. Both the accused's psychiatrist, Dr Nielssen, and Professor Greenberg (who reported to the Crown) regarded significant recovery within that period as unlikely, given the chronic and permanent nature of his condition. The court applied the principle from R v Risi [2021] NSWSC 769 that a finding of "will not become fit" requires "real certainty," and was satisfied that standard was met. Both the Crown and defence counsel agreed with this finding.

Because the accused will not become fit, the Act requires the holding of a special hearing under Part 4, Division 3. However, the court must first obtain advice from the Director of Public Prosecutions as to whether further proceedings will be taken, pursuant to s 53(2).

Orders Made

  • The accused is unfit to be tried on the offences charged on the indictment.
  • On the balance of probabilities, the accused will not become fit to be tried within 12 months of the finding of unfitness.
  • The matter was listed for mention before the List Judge in the District Court at Parramatta on 21 January 2022.
  • Bail was continued on its current terms.

Key Takeaways

  • The District Court confirmed that dementia caused by traumatic brain injury falls within the definition of "cognitive impairment" under s 5(2)(c) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), without any need to quantify the precise degree of impairment.
  • Under s 36 of the Act, a person is unfit to stand trial if, by reason of a mental health or cognitive impairment, they cannot meet one or more of the listed criteria. These criteria codify the common law Presser test as approved by the High Court in Kesavarajah.
  • A finding under s 47(1)(b) that an accused "will not become fit" within 12 months requires "real certainty" about that prognosis, following R v Risi [2021] NSWSC 769. The standard is distinct from the ordinary balance of probabilities test applied to the fitness finding itself.
  • Where the possibility of malingering was raised by some experts but none excluded a genuine disorder, the court proceeded on the basis that a real neurocognitive disorder was established. The existence of potentially exaggerated symptoms did not preclude a finding of cognitive impairment.
  • A finding that an accused will not become fit triggers the obligation to hold a special hearing, but only after the Director of Public Prosecutions advises whether further proceedings will be taken, pursuant to s 53(2) of the Act.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61J, 61KD
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 5, 36, 38, 44, 47, 48, 53

Cases
- R v Presser [1958] VR 45
- Kesavarajah v The Queen (1994) 181 CLR 230
- R v Risi [2021] NSWSC 769