Citation: R v Eriksen (No 2) [2025] NSWSC 1493
Court: Supreme Court of NSW
Date: 14 May 2025
Judge: Coleman J
Background
The accused stood charged with murder and was scheduled for trial on 5 May 2025. Over the months preceding trial, he dismissed two sets of legal representatives and his Legal Aid grant was ultimately terminated after he refused to cooperate with lawyers and declined an AVL conference. He indicated he intended to represent himself.
The question of fitness to stand trial arose from an unsigned document filed by one of the accused's departing solicitors, which requested a psychiatric assessment. The accused objected to that document being relied upon, saying he had given no instructions for it to be filed.
In response to the raised question, Coleman J made orders in March 2025 under the Mental Health (Cognitive Impairment and Forensic Decisions) Act 2020 (NSW) directing a psychiatric examination. The accused refused to attend the psychiatric assessment on two occasions, leaving the forensic psychiatrists unable to conduct a full clinical evaluation.
Legal Issues
- Whether the question of the accused's fitness to stand trial had been sufficiently raised to require the court to act on it
- Whether the limited psychiatric report, produced without the accused's participation, was sufficient to displace the presumption of fitness
- Whether a formal fitness inquiry under the Act was necessary in the circumstances
Decision
Coleman J noted that the presumption of fitness to stand trial is well established, citing Eastman v The Queen (2000) 203 CLR 1 and JM v R; R v JM [2017] NSWCCA 138. His Honour observed that nothing in the accused's conduct during the hearings, aside from the solicitor's document, had independently raised any concern about fitness.
The psychiatrists' report of 2 April 2025 was substantially limited by the accused's refusal to participate in the clinical assessment. The doctors could neither identify nor exclude a mental health diagnosis, and expressly noted the significant limitations on their ability to provide a reliable opinion. However, they could not positively establish unfitness.
Coleman J conducted a modified inquiry, asking the accused questions in court designed to assess his understanding of the trial process and the nature of the charge against him, drawing on the criteria in R v Presser [1958] VR 45. The accused's responses gave no cause for concern. He engaged fully, answered questions appropriately, and demonstrated sufficient understanding of what was happening.
The court concluded there was no material capable of displacing the presumption of fitness and determined that a formal fitness inquiry under s 41 of the Act was not necessary. The trial was directed to proceed.
Orders Made
- No formal fitness inquiry would be held under s 41 of the Mental Health (Cognitive Impairment and Forensic Decisions) Act 2020 (NSW)
- The trial was directed to commence on 5 May 2025
Key Takeaways
- The presumption that a person is fit to stand trial is a starting point that requires affirmative material to displace; the mere raising of the question by a departing solicitor, without more, does not displace it.
- Under the Mental Health (Cognitive Impairment and Forensic Decisions) Act 2020 (NSW), a court that has ordered a psychiatric examination must still consider whether a formal inquiry is required; ordering an assessment and holding an inquiry are distinct steps.
- A psychiatric report that cannot establish unfitness due to the accused's own refusal to participate does not, of itself, provide sufficient material to rebut the presumption of fitness.
- Where an accused has consistently engaged with court proceedings, responded appropriately to questions, and demonstrated understanding of the charges and process, a court may draw on those observations alongside the Presser criteria in assessing fitness.
- Ordering a further psychiatric assessment serves limited utility where the accused has clearly indicated he will not comply and has already declined two scheduled examinations.
Legislation and Cases Referenced
Legislation
- Mental Health (Cognitive Impairment and Forensic Decisions) Act 2020 (NSW), ss 36, 41, 43
Cases
- Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29
- JM v R; R v JM [2017] NSWCCA 138
- R v Presser [1958] VR 45