AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Supreme Court 9 October 2023

R v Trinne

[2023] NSWSC 1212

Homicide
CRIMINAL LAW FITNESS TO BE TRIED ACCUSED CHARGED WITH MURDER AGREEMENT OF PARTIES AND EXPERTS ACCUSED UNFIT TO BE TRIED

Citation: R v Trinne [2023] NSWSC 1212
Court: Supreme Court of New South Wales
Date: 9 October 2023
Judge: Dhanji J

Background

The accused was charged with the murder of a 75-year-old man at Kyogle, alleged to have occurred on or about 26 April 2022. The Crown alleged the accused struck the deceased on the head with a brick and smothered him, with a motive grounded in grievances about noise from the neighbouring unit. The accused initially denied involvement but later made admissions to an acquaintance and then to police.

Before any arraignment, the defence raised the question of the accused's fitness to stand trial. Wilson J referred the matter for a fitness inquiry under s 40 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). That inquiry came before Dhanji J, who was required to determine the matter sitting alone.

  • Whether the accused met the minimum standards for fitness to be tried under s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), which codifies the common law test from R v Presser.
  • Whether, if found unfit, the accused was likely to become fit to be tried within the following twelve months.

Decision

The inquiry was uncontested. Both the Crown and the defence accepted, on the basis of expert psychiatric evidence, that the accused was unfit to be tried. The proceedings were characterised as non-adversarial, as required under the Act.

Two forensic psychiatrists gave evidence. Dr Gerald Chew, engaged by the defence, diagnosed the accused with chronic schizophrenia and concluded he did not meet the minimum standards in s 36 of the Act at the time of his report. Dr Kerri Eagle, engaged by the Crown, conducted a more recent assessment and reached the same conclusion. Dr Eagle found the accused unable to demonstrate a sufficient understanding of his options to plead, unable to exercise the right to challenge jurors, unable to understand the effect of evidence given against him, and unable to provide coherent instructions to his legal representatives or a coherent account to the court.

On the question of prognosis, both experts acknowledged uncertainty but left open the possibility of improvement. Dr Chew estimated that, if the accused responded to medication, he could become fit within six to twelve months. Dr Eagle agreed a trial of clozapine and assertive mental health treatment was warranted, and considered it possible, though not likely, that the accused might become fit for trial.

Dhanji J accepted the opinions of both experts and was satisfied on the balance of probabilities that the accused was currently unfit to be tried and that he may become fit within the following twelve months. Those findings enlivened the relevant provisions of the Act governing referral and adjournment.

Orders Made

  • The accused was referred to the Mental Health Review Tribunal for review pursuant to s 49(1) of the Act.
  • The proceedings on indictment were adjourned pending the Tribunal's determination pursuant to s 47(2)(b) of the Act.
  • The accused was remanded in custody pursuant to s 47(2)(d) of the Act.
  • The exhibits tendered at the fitness hearing were ordered to be forwarded to the Tribunal.

Key Takeaways

  • The Supreme Court applied the statutory fitness test under s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), which codifies the minimum standards originally identified in the Victorian decision of R v Presser [1958] VR 45.
  • Fitness inquiries under the Act are expressly non-adversarial in character. Even where both parties agree on the outcome, the court must independently assess the evidence and make its own findings on the balance of probabilities.
  • A finding that the accused may become fit within twelve months triggers the referral pathway to the Mental Health Review Tribunal rather than a special hearing process.
  • Concurrent expert reports from psychiatrists engaged separately by the defence and the Crown, each reaching the same conclusion, provided a straightforward basis for the court's determination.
  • Uncertainty about prognosis does not prevent a finding that the accused "may" become fit within twelve months; the statutory threshold does not require that fitness be likely, only that it is possible.

Legislation and Cases Referenced

Legislation:
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 36, 40, 44, 47, 49

Cases:
- R v Presser [1958] VR 45