Citation: [2024] NSWSC 674
Court: Supreme Court of New South Wales
Date: 28 May 2024
Judge(s): Campbell J
Background
The accused is charged with murdering his wife in June 2020. He was arraigned in the Supreme Court in August 2022, and in February 2023 McNaughton J found him unfit to plead. He has since been under the supervision of the Mental Health Review Tribunal, which has continued to certify him unfit and considered it unlikely he would become fit within 12 months.
The Director of Public Prosecutions determined to proceed to a special hearing, which is the mechanism under NSW law for dealing with serious charges where a defendant remains unfit to be tried. That hearing was listed to commence on 3 June 2024.
As preparations advanced, it became apparent that the accused's condition involved unusually complex psychiatric and neurological questions, including a possible diagnosis of Perry's Syndrome, a rare genetic condition and recognised precursor to dementia. Expert reports from both the Crown and defence psychiatrists had not been updated for an extended period, and a detailed review report prepared for the Tribunal only became available to the parties in approximately May 2024.
Legal Issues
- Whether the special hearing should be adjourned to allow both parties' psychiatric experts to fully review the available clinical material and reassess the accused.
- Whether such an adjournment was in the interests of justice, balanced against the significant time that had already elapsed since the accused's arrest.
Decision
Issue: Whether adjournment of the special hearing was warranted
Campbell J accepted that the psychiatric and neurological complexities surrounding the accused's condition created genuine uncertainty that had not yet been adequately resolved by the existing expert evidence (at [3]-[4]). The report prepared by forensic psychiatrist Dr Trevor Ma for the Tribunal provided a thorough review of clinical material dating back to December 2020, but had only recently become available to the parties' own experts (at [5]).
Both the defence expert and the Crown expert indicated they each required three to four months to review all the clinical material referenced by Dr Ma before they could reassess the accused (at [6]-[7]). Campbell J accepted the difficulties explained by counsel for both parties, noting the uncertainties surrounding the accused's condition and its potential effect on him at the time of the killing (at [9]).
His Honour expressly acknowledged the passage of nearly four years since the homicide and arrest, describing the delay as "verging on the unacceptable" from the perspective of the accused, the community, the Court, and the victim's family (at [8]). Despite that concern, Campbell J was satisfied that adjourning the special hearing was essential in the interests of justice, given the complexity of the psychiatric issues and the need for the parties to properly prepare (at [9]).
His Honour also noted that, given the volume of accumulated material and the complexity of the matter, it was preferable for the parties to return at an early date to report on the progress of preparations, rather than simply awaiting the next hearing date (at [10]).
Orders Made
- The special hearing fixed to commence on 3 June 2024 was adjourned.
- The special hearing was relisted to commence on 11 November 2024.
- The matter was listed for further directions before Campbell J at 9.30am on 25 June 2024.
Key Takeaways
- The Supreme Court granted an adjournment of a special hearing on the basis that neither party's psychiatric expert had been able to review recently available clinical material or conduct an updated assessment of the accused.
- Where an accused has been found unfit to plead and a special hearing is listed, the interests of justice may nonetheless require adjournment if the evidentiary foundations for mental health defences remain genuinely unresolved (at [9]).
- Adjournment was unopposed by the Crown, and Campbell J accepted the explanation jointly offered by defence counsel and the Crown Prosecutor as to why further time was necessary (at [9]).
- The court's willingness to adjourn did not diminish its concern about systemic delay: Campbell J explicitly acknowledged that nearly four years without resolution was approaching unacceptable territory for all parties, including the victim's family (at [8]).
- To manage the extended timetable, the court directed an early return date for directions rather than leaving preparation unsupervised until the relisted hearing (at [10]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Not stated