Citation: R v Bidner [2022] NSWSC 1676
Court: Supreme Court of New South Wales
Date: 7 December 2022
Judge: Wilson J
Background
An accused man was charged with the murder of another man at Cessnock in July 2020, together with three associated charges. When the matter was listed for trial on 14 November 2022, his legal representatives raised the question of his fitness to stand trial, and the trial could not proceed. The matter was adjourned for a formal Fitness Inquiry.
The fitness question centred on whether the accused had sustained a traumatic brain injury (TBI) in a motorcycle crash in April 2016, and whether any resulting cognitive impairment rendered him unfit. A similar fitness question had arisen in separate criminal proceedings following that same 2016 crash, providing a prior history of neuropsychological assessment relevant to the inquiry.
The Fitness Inquiry was conducted before Wilson J sitting alone on 5 and 6 December 2022. Evidence was received from three expert witnesses: a clinical neuropsychologist called by the Crown, and a specialist medical practitioner and a neuropsychologist called by the accused.
Legal Issues
- Whether the accused had sustained a TBI in the April 2016 motorcycle crash that produced an ongoing cognitive impairment within the meaning of s 5 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the MHCIFP Act)
- Whether any such cognitive impairment rendered the accused unfit to be tried under the fitness test in s 36(1) of the MHCIFP Act
- Whether modifications to the trial process or other assistance could facilitate the accused's participation, as required to be considered under s 44(5) of the MHCIFP Act
Decision
Wilson J found, on the balance of probabilities, that the accused was fit to stand trial. The court noted that fitness proceedings are not adversarial and that neither party bore any onus of proof. The focus throughout was on the accused's present capacity, not his capacity at the time of the alleged offence.
The medical records from the John Hunter Hospital were central to the analysis. Following the April 2016 motorcycle crash, CT brain imaging detected no skull fracture or acute intracranial bleeding, no head injury was noted on clinical examination, no post-trauma amnesia testing was conducted, and no concern about brain injury appeared in the nursing or medical notes prior to the accused's self-discharge. The court found this objective clinical record significant in assessing whether a TBI had in fact occurred.
Three expert witnesses gave evidence. The Crown's expert, clinical neuropsychologist Ms Lucienne Barhon, conducted a neuropsychological assessment and gave evidence the court found to be grounded in objective clinical measures that were resistant to manipulation through presentation alone. The accused's experts, Dr Gerald Chew and Mr Sam Borenstein, also gave evidence, but the court ultimately preferred the evidence of Ms Barhon as the most reliable. Wilson J accepted that the accused may have some level of impairment in certain aspects of cognitive function, consistent with conclusions drawn by earlier assessors in 2016 and 2017, but concluded he retained the capacity to meet each of the requirements listed in s 36(1) of the MHCIFP Act.
The court also noted that no concerns about the accused's fitness had been raised by his legal representatives during proceedings in March 2022 or during the present proceedings until the earlier fitness material came to light in November 2022. Wilson J observed that the accused's lived experience of fitness findings had, in his prior proceedings, been to his advantage, which was relevant context when assessing the reliability of expert opinions partly based on his self-reported presentation. Having regard to the expected three-to-four week trial duration and the accused's representation by senior counsel, the court was satisfied he was fit to be tried. It noted that assistance agencies were available if needed, and that applications for flexible sitting arrangements could be made to the court if required.
Orders Made
- The Court found, on the balance of probabilities, that the accused was fit to be tried for the murder
- The matter was adjourned for mention to fix a trial date at 10:00am on 8 December 2022, with leave to the parties to appear by AVL
- The accused was excused if legally represented
- Bail was not applied for and was refused
Key Takeaways
- Under s 36(1) of the MHCIFP Act, the fitness test focuses on a person's present capacity to understand and participate in proceedings, not their capacity at the time of the alleged offence.
- A history of motor vehicle accidents and prior neuropsychological assessments indicating some cognitive impairment does not automatically lead to a finding of unfitness; the court must assess whether the accused can satisfy each of the functional criteria in s 36(1).
- Objective clinical evidence, such as hospital imaging and contemporaneous medical records, carried significant weight in this inquiry. Wilson J preferred expert opinion grounded in such material over evidence more reliant on the accused's self-reported presentation.
- Fitness proceedings under the MHCIFP Act are non-adversarial, with no onus of proof on either party. The standard of determination is the balance of probabilities.
- Where some cognitive impairment exists, the court is required by s 44(5) to consider whether trial modifications or support services could facilitate the accused's participation before concluding the accused is unfit.
Legislation and Cases Referenced
Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 5, 36, 44, 46
- Mental Health Forensic Provisions Act 1990 (NSW)
Cases
- R v Presser [1958] VR 45 (the foundational Victorian decision establishing the common law fitness criteria, the principles of which are now codified in s 36 of the MHCIFP Act)