Citation: R v Cromwell (a pseudonym) [2022] NSWDC 80
Court: District Court of New South Wales
Date: 15 February 2022
Judge(s): Colefax SC DCJ
Background
The accused (referred to by the pseudonym "Cromwell") was arrested in November 2020 while on parole for prior child sex offences, following the execution of a search warrant. He was originally charged with 15 offences under a combination of New South Wales and Commonwealth legislation. By the time the matter reached the District Court, only six charges remained: two Commonwealth offences and four State offences.
A question arose as to whether the accused was fit to stand trial on the remaining charges. That question was referred to the District Court as required under both the relevant Commonwealth and New South Wales legislation. Three expert reports were obtained, including reports from a forensic psychiatrist retained by the Crown and two reports obtained on behalf of the accused.
Legal Issues
- Whether the accused was unfit for trial under the criteria in s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
- Whether, in relation to the State charges, the accused was unlikely to become fit for trial within the next 12 months
- What procedural consequences followed from a finding of unfitness, and whether those consequences differed as between the State and Commonwealth charges
Decision
Issue 1: Fitness for trial
All three experts concluded, by reference to s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), that the accused was unfit for trial. Colefax SC DCJ noted that expert unanimity is not binding on the court, but that overriding such unanimity would be a rare outcome (at [11]). On the balance of probabilities, the court was satisfied that the accused was unfit for trial (at [12]).
Issue 2: Likelihood of becoming fit within 12 months (State charges)
There was a slight difference of opinion between the experts retained by the accused (Dr Hughes and Dr Dayalan) and the Crown's expert (Dr Martin) on this question. Despite that difference, the court was satisfied on the balance of probabilities that the accused would not become fit for trial within the next 12 months in connection with the State charges. The court noted this finding was not necessary or relevant at this stage in relation to the Commonwealth charges (at [12]).
Issue 3: Procedural consequences, State charges
The finding of unfitness and the finding that the accused would not become fit within 12 months triggered a two-step consequence for the State charges. First, the matter must be referred to the NSW Director of Public Prosecutions to decide whether to continue the prosecution. Second, if the DPP elects to proceed, a special hearing must be held (at [14]).
Issue 4: Procedural consequences, Commonwealth charges
The regime for Commonwealth charges diverges from the State regime at this point. Rather than referral to a Director of Public Prosecutions and a special hearing, the court is required to embark on a determination of whether a prima facie case has been established against the accused (at [15]). The court adjourned to allow the State DPP to consider her position on the State charges, anticipating that both the special hearing (if applicable) and the Commonwealth prima facie case determination would ultimately be listed together (at [17]).
Orders Made
- The accused is unfit for trial
- State charges referred to the NSW Office of the Director of Public Prosecutions for consideration of whether to proceed
- Commonwealth charges to proceed to a determination as to whether a prima facie case is made out
- Proceedings adjourned to 24 March 2022
- Bail refused (not applied for)
Key Takeaways
- The statutory fitness test under s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) has replaced the common law Presser criteria, though the statutory test substantially reflects the common law position, and s 44 of the Act codifies the approach previously established in Kesavarajah (at [8]).
- Fitness proceedings are not adversarial and are determined on the balance of probabilities; expert agreement does not bind the court, but departing from unanimous expert opinion is expected to be rare (at [9], [11]).
- Where an accused faces both State and Commonwealth charges, a finding of unfitness triggers materially different procedural pathways: State charges are referred to the DPP with the possibility of a special hearing, while Commonwealth charges proceed to a prima facie case determination by the court (at [13]-[15]).
- A finding that the accused will not become fit for trial within 12 months is required for the State charges to progress to referral and potential special hearing, but that finding has no equivalent procedural role at the same stage for Commonwealth charges (at [12]).
- Under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the two distinct findings of unfitness and unlikelihood of recovery within 12 months must each be addressed separately, and their consequences depend on whether the charge in question is a State or Commonwealth matter.
Legislation and Cases Referenced
Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
Cases
- R v Presser (1958) VR 45; Kesavarajah v R (1994) 181 CLR 245;R v Munday [2021] NSWDC 374; Taylor v R (1978) 22 ALR 599; R v Denison (a pseudonym) [2020] NSWDC 267