Citation: R v Maxwell [2023] NSWSC 1189
Court: Supreme Court of New South Wales
Date: 12 September 2023
Judge: Yehia J
Background
The accused was committed to stand trial in the Supreme Court on a charge of murder, alleged to have been committed as a participant in a joint criminal enterprise. The Crown case alleged that the deceased, the president of a motorcycle club, was shot and killed at his home in regional New South Wales in the early hours of 14 January 2020. The accused was alleged to have attended the scene armed and in dark clothing, though he was not present inside the home when the fatal shot was fired.
Before the trial could proceed, a question arose as to whether the accused was fit to stand trial. That question fell to be determined under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), on the balance of probabilities.
Three forensic experts provided evidence at the fitness hearing: Dr Andrew Ellis (forensic psychiatrist), Dr Lennings (psychologist), and Dr O'Dea (psychiatrist). Dr Ellis and Dr Lennings were called by the defence; Dr O'Dea was called by the Crown.
Legal Issues
- Whether the accused met the minimum standards for fitness to be tried, as set out in s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), commonly derived from the criteria in R v Presser [1958] VR 45.
- Whether any modifications to court processes or sitting hours could ameliorate the accused's impairments sufficiently to render him fit.
- Whether, on the balance of probabilities, the accused would not become fit to be tried within 12 months of the finding of unfitness, as required by s 47(1)(b) of the Act.
Decision
Dr Ellis assessed the accused as suffering from a psychotic disorder characterised by intermittent hallucinations and a cognitive impairment comprising an intellectual disability and a potential neurocognitive disorder. Dr Ellis found that the combination of these conditions meant the accused could not meet the fitness criteria. Specific deficiencies were identified across multiple limbs of the Presser test, including difficulty understanding the concept of joint criminal enterprise, a risk of changing his plea in response to social pressure or frustration without appreciating the consequences, potential to agree with questioners rather than give a consistent account, and an inability to reliably instruct his legal representatives.
Dr Ellis noted that, at the time of assessment, psychotic symptoms were minimal and the accused's deficits were primarily attributable to cognitive impairment rather than active psychosis. That distinction was significant: while antipsychotic medication could address psychotic symptoms, it could not remedy the underlying cognitive deficits. Dr Lennings reached the same conclusions in earlier reports from 2022, and the accused's presentation at the more recent review was consistent with those earlier observations.
Yehia J accepted the expert evidence and found the accused unfit to be tried. The court also addressed the question of whether modifications to the trial process, such as adjusted sitting hours, could bridge the gap. On the evidence, particularly given the cognitive rather than purely psychiatric nature of the impairment, no such adjustments could render the accused fit.
Both Dr Ellis and Dr Lennings agreed that the accused was unlikely to improve within 12 months. Dr Ellis acknowledged that a more comprehensive clinical review might identify some areas for potential improvement, but expressed the view that positive change within 12 months was unlikely on balance. The court accepted that evidence and made a further finding under s 47(1)(b) of the Act that the accused would not become fit within that period.
Orders Made
- The accused was found unfit to be tried on the offence charged in the indictment, in accordance with the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).
- Pursuant to s 47(1)(b), the court found on the balance of probabilities that the accused would not become fit to be tried within 12 months of the finding of unfitness.
- The accused was remanded in custody.
- Pursuant to s 53(2), the proceedings were listed for mention on 20 October 2023 for the court to receive advice from the Director of Public Prosecutions as to whether further proceedings would be taken in respect of the offence.
Key Takeaways
- Under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), unfitness to be tried is assessed on the balance of probabilities against the criteria in s 36, which reflect the long-standing common law standards from R v Presser.
- A combination of psychotic disorder and cognitive impairment can together produce unfitness even where active psychotic symptoms are minimal at the time of assessment; the cognitive component alone may be determinative.
- Where the primary source of unfitness is cognitive impairment rather than active psychiatric illness, medication and other clinical interventions are less likely to restore fitness, which bears directly on the s 47(1)(b) question of whether fitness will be achieved within 12 months.
- The Supreme Court's finding under s 47(1)(b) triggered the s 53 process, requiring the Director of Public Prosecutions to advise whether further proceedings would be pursued, illustrating the procedural pathway that follows an unfitness determination where recovery within 12 months is not expected.
- Modifications to court processes and sitting arrangements do not, on their own, overcome the fitness threshold where the accused's underlying impairments prevent him from meeting the minimum requirements of the Presser criteria.
Legislation and Cases Referenced
Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 5, 35, 36, 37, 38, 39, 44, 47, 48, 49, 50, 51, 52, 53, Pt 4 Div 1
- Crimes Act 1900 (NSW), s 18(1)(a)
- Bail Act 2013 (NSW)
Cases
- Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41
- R v Presser [1958] VR 45
- R v Risi [2021] NSWSC 769