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District Court 18 November 2021

R v Grey (a pseudonym)

[2021] NSWDC 719

Sexual offences
CRIME FITNESS TO BE TRIED. MENTAL HEALTH CRIMINAL PROCEEDINGS FITNESS TO BE TRIED PROCEDURE.

Citation: R v Grey (a pseudonym) [2021] NSWDC 719
Court: District Court of New South Wales
Date: 18 November 2021
Judge(s): Colefax SC DCJ

Background

The accused, referred to by the pseudonym Mr Grey, was charged with 69 counts of alleged sexual offending against four of his nieces and nephews across a period spanning January 1994 to the end of 2012. He was committed for trial on 6 June 2021, with the committing magistrate noting questions about his fitness to stand trial at that time.

A fitness inquiry was subsequently ordered by the list judge and transferred to Campbelltown. The inquiry proceeded on the written reports of three experts and partial oral evidence from one, after technical difficulties during the hearing (attributable to COVID-19 pandemic conditions) led the parties to agree that completing oral evidence would add little to the inquiry.

Legal Issues

  • Whether Mr Grey was unfit to be tried within the meaning of s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the Act")
  • Whether, under s 47(1) of the Act, the court was satisfied on the balance of probabilities that Mr Grey would not become fit to be tried within 12 months, triggering a mandatory special hearing, or whether he may become fit within 12 months, requiring referral to the Mental Health Review Tribunal

Decision

Issue 1: Fitness to be tried

Both expert witnesses, Dr Furst (retained by the accused) and Professor Greenberg (retained by the Crown), concluded that Mr Grey is currently unfit to stand trial. Both identified a cognitive impairment, though they disagreed on its extent, with Dr Furst viewing it as more substantial. The court found, on the basis of both experts' evidence, that Mr Grey is unfit to be tried on the offences in indictment 7.6 (at [22]-[23], [33]).

The court also noted that both experts framed their analyses by reference to the common law criteria from Presser and Kesavarajah rather than the statutory provisions of the Act. However, this did not diminish the weight of their evidence, because s 36 and s 44 of the Act effectively mirror the common law tests from those decisions (at [19]-[20]).

Issue 2: The binary choice under s 47(1), and referral or special hearing

The critical dispute between the experts concerned the prospects of Mr Grey becoming fit within 12 months. Dr Furst, who also diagnosed schizophrenia in addition to the cognitive impairment, concluded that Mr Grey definitively would not become fit within that period. Professor Greenberg was less certain about any mental health impairment beyond the cognitive impairment and concluded that, with appropriate steps, Mr Grey may become fit within 12 months (at [24]-[25]).

Following the approach taken by Beech-Jones J in R v Risi and Hamill J in R v Lailna, the court noted that s 47(1) provides only a binary choice between these two outcomes (at [29]). Applying that framework, Colefax SC DCJ was satisfied, on the basis of Professor Greenberg's evidence in particular, that there existed a realistic possibility (though not a likelihood) that appropriate hospital treatment could render Mr Grey fit within 12 months. The court was therefore not satisfied on the balance of probabilities that he would not become fit in that period, and ordered referral to the Mental Health Review Tribunal rather than proceeding to a special hearing (at [32]-[35]).

Orders Made

  • Mr Grey is unfit to be tried on the offences the subject of indictment 7.6
  • On the balance of probabilities, the court found under s 47(1)(a) of the Act that Mr Grey may become fit to be tried within 12 months
  • Mr Grey is remanded in custody
  • Mr Grey is referred to the Mental Health Review Tribunal pursuant to s 49(1) of the Act
  • A copy of the remarks and exhibit A to be provided to the Tribunal by the registrar
  • If Mr Grey becomes fit within 12 months, or if the Director orders a special hearing, the matter is to be transferred back to the Downing Centre; the file otherwise remains at Campbelltown

Key Takeaways

  • The District Court confirmed that, under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the fitness test in s 36 and the considerations in s 44 effectively mirror the common law criteria from Presser and Kesavarajah, meaning expert evidence framed around the common law tests will not automatically lose evidentiary weight (at [20]).
  • It would be preferable, however, for experts retained in fitness inquiries to direct their analyses to the statutory provisions rather than the common law authorities, which have been superseded in NSW by the Act (at [21]).
  • Section 47(1) of the Act presents the court with a strict binary choice: either the accused will not become fit within 12 months (triggering a mandatory special hearing under s 48), or the accused may become fit within that period (requiring referral to the Mental Health Review Tribunal under s 49) (at [29]).
  • A "realistic possibility," even falling short of a likelihood, that an accused may become fit with appropriate treatment is sufficient to satisfy the s 47(1)(a) threshold and avoid a mandatory referral to a special hearing (at [32]).
  • Fitness proceedings are not adversarial in nature; combative or inflammatory language in expert reports is inconsistent with the character of such inquiries, particularly where the expert is experienced in the jurisdiction (at [10], [13]).

Legislation and Cases Referenced

Legislation
- Mental Health and Cognitive Impairment Forensic Provision Act 2020 (NSW)

Cases
- R v Presser [1958] VR 45; Kesavarajah v The Queen [1994] 181 CLR 230; R v Munday [2021] NSWDC 374; R v Risi [2021] NSWSC 769; R v Lailna [2021] NSWSC 1205