Citation: R v Honeysett (Fitness to stand trial) [2023] NSWSC 76
Court: Supreme Court of New South Wales
Date: 10 February 2023
Judge: Hamill J
Background
An accused person charged with murder was the subject of a fitness inquiry under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) shortly before a pre-trial hearing. The fitness issue emerged only weeks before proceedings were due to commence, after a psychologist engaged to assess admissibility questions raised a separate concern about whether the accused could participate in a trial at all.
The accused had a documented cognitive impairment, variously described as a mild intellectual developmental disability or borderline intellectual functioning, placing him in approximately the bottom 4 to 8 percentile of the general population for intellectual functioning. His solicitor had been retained late in the proceedings following the departure of a Legal Aid in-house lawyer, and acted promptly once the fitness concern was formally identified.
Two forensic psychologists gave evidence: Dr Travis Wearne, who had conducted detailed cognitive testing, and Dr Susan Pulman, who was originally engaged by the prosecution on the admissibility issue and who prepared a fitness report under significant time pressure over the summer vacation period.
Legal Issues
- Whether the accused met the criteria for unfitness to stand trial under s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), specifically whether his cognitive impairment prevented him from understanding or participating in the proceedings in one or more of the ways listed in that section
- How conflicting expert opinions on the degree of cognitive impairment should be assessed
- Whether modifications to the trial process and the provision of a support person could address any deficiencies in the accused's capacity to participate
- The relevance of the accused's loss of memory of the alleged events to the fitness determination
Decision
Hamill J found the accused fit to be tried, with the proceedings recommencing under s 46 of the Act. The judge generally preferred the evidence of Dr Wearne over that of Dr Pulman on the fitness criteria, finding that Dr Pulman's assessment was somewhat peremptory and was conducted in approximately 25 minutes, leaving some of the accused's answers on critical issues insufficiently explored. That said, the judge acknowledged Dr Pulman's contribution warmly given the constraints she faced.
Both experts agreed on several matters in the accused's favour: he could understand the subject matter of the proceedings and could plead to the charge. The area of real concern centred on the accused's understanding of what a plea of not guilty actually achieves. His description of that plea amounted to a rudimentary and fatalistic view, expressed as something like waiting in gaol until found guilty, rather than an understanding that a not guilty plea requires the prosecution to prove its case beyond reasonable doubt. This raised genuine questions about whether he understood the proceedings as an inquiry into whether he committed the offence.
Hamill J concluded that modifications to the trial process, including adjusted sitting hours, and the provision of a support person, could alleviate the difficulties the accused would otherwise face. The finding of fitness was expressly made on the understanding that a support person would be available in accordance with Dr Wearne's evidence. The judge noted that if that understanding proved misplaced, the fitness finding could not be treated as unconditional.
The judgment also addressed the late timing of the fitness referral and was explicit that no criticism attached to the accused's current legal team. The delay arose from a combination of circumstances entirely outside their control.
Orders Made
• Mr Honeysett is fit to be tried
• Parties are directed to liaise with each other to facilitate arrangements for a support person
• Legal Aid Commission is recommended to urgently extend the grant of Legal Aid to fund a support person
Key Takeaways
- Under s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the fitness inquiry is not binary: the court may consider whether procedural modifications and support mechanisms can render an accused fit even where cognitive impairment is established.
- A rudimentary or fatalistic understanding of a not guilty plea, such as simply waiting to be found guilty rather than understanding that the prosecution bears the burden of proof, is a relevant consideration under the fitness criteria, though it is not automatically determinative.
- Where expert opinions conflict on fitness, the quality and thoroughness of each assessment is a material factor. An opinion prepared under time pressure with limited examination time may be afforded less weight, even where the expert acted in good faith.
- The fitness finding was expressly conditioned on the availability of a support person, and the judgment recommended that the Legal Aid Commission urgently consider funding one. The Director of Public Prosecutions was noted as having a potential role in facilitating support arrangements given its interest in the trial proceeding.
- Loss of memory of the events the subject of a charge does not, of itself, render an accused unfit to stand trial; the fitness criteria under the Act focus on the capacity to understand and participate in the proceedings, not on the accused's recollection of the underlying facts.
Legislation and Cases Referenced
Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 36, 37(1), 42, 43, 44, 46
Cases
- R v Drummond (Court of Criminal Appeal (NSW), 27 May 1994, unreported)
- R v Mark Joseph Smith [2008] NSWDC 23
- R v Weazel [2013] NSWSC 856
- Rigney v The Queen [2022] HCATrans 112
- The Queen v Gregory Clive Griffith (Supreme Court (SA), 27 August 2008, unreported)