AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 13 August 2024

R v Lipohar

[2024] NSWDC 374

Assault & violence
MENTAL HEALTH FITNESS HEARING ACCUSED’S FITNESS TO STAND TRIAL

Citation: R v Lipohar [2024] NSWDC 374
Court: District Court of New South Wales
Date: 13 August 2024
Judge(s): Bennett SC ADCJ

Background

The accused was committed to the District Court for an alleged offence of wounding with intent under s 33(1)(b) of the Crimes Act 1900. The charge arose from an incident in Albury in July 2023, in which the accused stabbed a furniture delivery worker with a knife, causing a three-to-five-centimetre wound to the left side of the victim's neck that narrowly missed a critical artery. Police arrested the accused at the building shortly after; he appeared confused and disoriented.

Before arraignment, a fitness hearing was convened under Part 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the Act). Both the prosecution and the defence retained expert psychiatrists, each of whom assessed the accused and provided written reports. Neither party required the experts for cross-examination, and neither challenged their opinions.

Legal Issues

  • Whether the accused was fit to stand trial within the meaning of s 36(1) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020
  • Whether the accused would become fit within twelve months
  • What procedural consequences would follow from a finding of unfitness

Decision

Issue 1: Fitness for trial

Both psychiatrists, Dr Martin (retained by the Director of Public Prosecutions) and Dr Furst (retained by the accused's solicitors), independently diagnosed the accused with schizophrenia and each concluded he was unfit for trial (at [11]). Dr Furst diagnosed treatment-resistant schizophrenia (at [20]-[21]). Dr Martin described the accused during assessment as dishevelled, preoccupied, perplexed, and producing responses lacking coherence and logic (at [14]).

The court accepted both expert opinions and found, on the balance of probabilities, that the accused was unfit for trial due to a mental health impairment arising from schizophrenia (at [33]). Specifically, the accused was unable to participate in the conduct of the proceedings, including instructing his solicitor and counsel after attending to their advice and opinions (at [26], [34]). The court applied the criteria in s 36(1) of the Act, which builds upon the principles established in Kesavarajah v The Queen and the foundational Presser criteria (at [10]).

Issue 2: Likelihood of becoming fit within twelve months

Dr Furst expressed the opinion that the accused would not become fit within the next twelve months (at [27]). The court accepted that opinion and made a finding to that effect on the balance of probabilities (at [35]).

Issue 3: Procedural consequences

Having found that the accused would not become fit within twelve months, the court directed that the Crown seek instructions from the Director of Public Prosecutions in accordance with s 53 of the Act (at [35]). If the proceedings were to continue, a special hearing would be required to follow as soon as practicable under s 59 of the Act (at [35]). The court also noted Dr Furst's opinion that the accused may have available to him a defence of not guilty by reason of mental health impairment under s 28 of the Act, given that he was likely unable to reason about the wrongfulness of his conduct at the time of the offence (at [27]).

Orders Made

  • The accused is unfit for trial.
  • The Crown is to seek instructions from the Director of Public Prosecutions in accordance with s 53 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.
  • If proceedings continue, a special hearing must follow as soon as practicable under s 59 of the Act.

Key Takeaways

  • The District Court confirmed that a fitness hearing under Part 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 may be conducted before arraignment, provided the question is raised during the prosecution sequence and in good faith (at [2]-[3]).
  • Where both independently retained psychiatric experts agree on a diagnosis and a finding of unfitness, and neither party challenges those opinions, the court will generally accept those expert conclusions in determining fitness on the balance of probabilities (at [11], [33]).
  • Under s 36(1) of the Act, the Presser criteria and the principles from Kesavarajah v The Queen remain relevant to the assessment of fitness, including an accused's capacity to instruct legal representatives after attending to their advice (at [10], [34]).
  • A finding that the accused will not become fit within twelve months triggers the obligation for the Crown to seek directions from the Director of Public Prosecutions under s 53 of the Act, with a special hearing required to follow as soon as practicable if the matter proceeds (at [35]).
  • The court noted that the existence of a potential defence under s 28 of the Act (not guilty by reason of mental health impairment) was a relevant consideration in the expert assessment, though that question remains to be determined at any future special hearing (at [27]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 s33(1)(b)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 Part 4

Cases
- Kesavarajah v The Queen [1994] HCA 41
- Reg. v. Presser (3) (1958) VR 45