Citation: R v Briar [2024] NSWDC 590
Court: District Court of New South Wales
Date: 15 October 2024
Judge: Haesler SC DCJ
Background
The defendant faced three serious criminal charges, including a home invasion resulting in actual bodily harm, an alternative charge of assault occasioning actual bodily harm, and a choking offence, all allegedly occurring at Wilcannia in February 2023.
The defendant has a cognitive impairment, intellectual disability, and other conditions affecting his intellectual capacity. His personal and medical history was documented in a Justice Health report and examined by forensic experts retained for the fitness inquiry.
The question of his fitness to enter pleas and stand trial was raised in good faith under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). The inquiry proceeded without adversarial contest, with both the prosecution and defence accepting the expert evidence.
Legal Issues
- Whether the defendant was fit to stand trial under section 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
- Whether, if found unfit, the defendant would become fit to stand trial within 12 months under section 47 of that Act
- What procedural steps followed from those findings
Decision
Issue 1: Fitness to Stand Trial
The court applied the test in section 36 of the Act, which mirrors the common law "Presser test" and is directed at the minimum requirements for a fair trial (at [14], [26]). The key question was whether the defendant could understand and follow proceedings, give adequate instructions to his lawyer, communicate his version of events, and make decisions about his defence (at [26]-[29]).
Two independent experts, neuropsychologist Dr McSwiggan and forensic psychiatrist Dr Martin, each concluded that the defendant could not meet these minimum requirements (at [19]-[24]). The court made its own assessment and found as a fact that the defendant was unable to make a defence, give necessary instructions to his lawyer, communicate his account, or decide upon a plea (at [28]-[29]). The court accordingly found him unfit to stand trial (at [30]).
Issue 2: Likelihood of Becoming Fit Within 12 Months
The expert evidence was unanimous that the defendant would not become fit within 12 months, with Dr McSwiggan expressing the view that there was "no way" his situation would improve given the nature of his cognitive impairment and intellectual disability (at [20]). The court accepted that no other finding was open on the evidence and concluded that the defendant's position would not change (at [30]-[31]).
Issue 3: Procedural Consequences
Having found the defendant permanently unfit, the court was required under the Act to proceed toward a special hearing under Division 3 (at [32]). The registrar of the District Court at Broken Hill was directed to seek advice from the Director of Public Prosecutions on whether to proceed with a special hearing in respect of the charges on the indictment (at [32]).
Orders Made
- The defendant is found unfit to be tried on the present indictment
- The defendant is found not likely to become fit to stand trial within 12 months
- The registrar of the District Court at Broken Hill is directed to request the advice of the Director of Public Prosecutions as to whether a special hearing will proceed
- The matter was listed for call-over on 6 November 2025, with bail continuing
Key Takeaways
- Under section 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the fitness test is directed at minimum requirements for a fair trial, including the defendant's ability to understand proceedings, instruct counsel, communicate their account, and make decisions about their defence (at [26]-[27]).
- A fitness inquiry under the Act is not adversarial, and the onus of proof does not rest on any particular party; the judge must make an independent determination even where all parties and experts are in agreement (at [11]-[12], [25]).
- The District Court confirmed that the statutory test in section 36 mirrors the common law "Presser test," with the high court decisions in Ngatayi and Kesavarajah informing the relevant considerations (at [14], [16]).
- Where a defendant is found both unfit and unlikely to become fit within 12 months, the Act requires the matter to proceed toward a special hearing, with the Director of Public Prosecutions advising whether further proceedings will be taken (at [32]).
- Permanent cognitive impairment and intellectual disability can, on appropriate expert evidence, support a finding that a defendant will not become fit to stand trial within the 12-month timeframe contemplated by section 47 of the Act (at [20], [31]).
Legislation and Cases Referenced
Legislation
- Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW)
Cases
- Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230
- Ngatayi v The Queen [1980] HCA 18; (1980) 147 CLR 1
- R v Presser [1958] VR 45