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6
Supreme Court 21 June 2021

R v Risi

[2021] NSWSC 769

Assault & violenceHomicide
CRIMINAL LAW FITNESS TO BE TRIED CURRENTLY UNFIT TO BE TRIED

Citation: R v Risi [2021] NSWSC 769
Court: Supreme Court of New South Wales
Date: 21 June 2021
Judge(s): Beech-Jones J

Background

The accused was charged by indictment with the murder of one person and the assault occasioning actual bodily harm of another, arising from a violent incident at a Gladesville apartment block in March 2020. The Crown alleged the accused, then aged 35 and effectively homeless, gained access to an apartment while its occupants slept and struck them both with a guitar. The alleged murder victim died from brain trauma several days later.

A question concerning the accused's fitness to stand trial was raised before he was arraigned. Beech-Jones J conducted an inquiry under the newly commenced Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). Expert evidence before the inquiry confirmed the accused had both a mental health impairment and a cognitive impairment, the latter linked in part to a near-drowning episode in early childhood and longstanding difficulties including diabetes and its complications.

The parties were not in dispute about the accused's current unfitness. The sole contested question was whether, on the balance of probabilities, the accused may become fit to stand trial within the following 12 months, or would not become fit during that period.

  • Whether the accused was currently unfit to be tried under the fitness test in section 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), which reflects the longstanding criteria in R v Presser (1958) VR 45.
  • Whether, on the balance of probabilities, the accused may become fit to be tried within 12 months of the finding of unfitness (section 47(1)(a)), or would not become fit within that period (section 47(1)(b)).
  • Whether the Court had power to order the accused be detained in a specific type of facility, such as a hospital.
  • Whether the Court had power to refer the matter back to the Director of Public Prosecutions to reconsider the continuation of the prosecution.

Decision

Beech-Jones J found, without real dispute, that the accused was presently unfit to be tried. The evidence established impairments across several of the capacities listed in section 36 of the Act, including understanding the proceedings, following their course, and instructing legal representatives. The fitness test in section 36 was noted to reflect the established common law criteria from R v Presser.

The more contested question was the 12-month prognosis. His Honour found, on the balance of probabilities, that the accused may become fit within the 12-month period. The judgment noted that transfer to an appropriate clinical facility, specifically Long Bay Hospital, was described as the only realistic means by which fitness might be achieved. This outcome, the Court observed, served both the interests of the accused and the interests of the public.

On the question of whether the Court could order detention in a specific type of facility, his Honour expressed significant doubt that such a power existed under section 47(2), while acknowledging the compelling and almost overwhelming need for clinical placement given the circumstances. The Court did not make any such order.

The accused's counsel had also sought an order referring the matter back to the Director of Public Prosecutions to consider whether to continue the prosecution. His Honour declined, noting that such an order is only engaged under section 53(2) where a finding has been made under section 47(1)(b) (that the accused will not become fit), and that the division of functions between the DPP and the Court provided an independent reason against making the order.

Orders Made

  • The accused be remanded in custody.
  • Pursuant to section 49(1) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, the accused be referred to the Mental Health Review Tribunal.

Key Takeaways

  • Section 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) codifies the fitness test previously established in R v Presser (1958) VR 45, and the Supreme Court confirmed that test applied without modification on the facts here.
  • Under section 47(1), once unfitness is found, the court must make a further determination on the balance of probabilities: whether the defendant may become fit within 12 months (triggering referral to the Mental Health Review Tribunal under section 49) or will not become fit (triggering a special hearing under Division 3 of Part 4).
  • A finding that an accused "may become fit" under section 47(1)(a) does not require certainty or even likelihood of fitness being achieved; it sets a lower threshold, distinguished clearly from a finding that the accused "will not" become fit.
  • The Supreme Court expressed significant doubt that it has power under section 47(2) to order an accused be detained in a specific facility or type of facility, even where clinical placement is practically essential to any prospect of fitness being restored.
  • The order to refer the matter back to the DPP under section 53(2) is only available where the court makes a finding under section 47(1)(b) that the accused will not become fit; it is not available following a finding under section 47(1)(a).

Legislation and Cases Referenced

Legislation:
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), particularly sections 4, 5, 36, 38, 39, 44, 47, 48, 49, 50, 51 and 53
- Mental Health Forensic Provisions Act 1990 (NSW) (replaced by the 2020 Act)
- Bail Act 2013 (NSW)

Cases:
- R v Presser (1958) VR 45