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Supreme Court 14 November 2000

R v DMA

[2000] NSWSC 1051

Assault & violenceHomicide
CRIMINAL LAW WHETHER ACCUSED FIT TO BE TRIED

Citation: R v DMA [2000] NSWSC 1051
Court: Supreme Court of New South Wales, Common Law Division
Date: 14 November 2000
Judge(s): Dunford J

Background

The accused, a young woman born in August 1982, faced two serious charges: wounding her mother with intent to murder at Warilla in January 1999, and murdering a TAFE cooking teacher at Yasmar Detention Centre in July 1999. The second alleged offence occurred while she was already in custody on remand for the first charge. Both counsel agreed that, subject to the court's satisfaction, the accused was unfit to be tried.

The accused had a deeply troubled background. She was placed in state care at age two, made a ward of the state at four, and had spent years in various foster and institutional placements. Multiple clinicians had assessed her as functioning in the mildly intellectually disabled range, and she had a documented history of rage episodes, self-harm, and violent behaviour.

The court conducted an inquiry under section 12 of the Mental Health (Criminal Procedure) Act 1990. The accused had elected to have the fitness inquiry determined by a judge alone rather than a jury, and the court was satisfied she had received appropriate legal advice before making that election.

  • Whether the accused was fit to be tried on the charges of wounding with intent to murder and murder, applying the criteria established in R v Presser [1958] VR 45
  • Whether the accused had validly elected to have the fitness inquiry heard by a judge alone rather than a jury
  • What orders were appropriate following a finding of unfitness

Decision

Dunford J found the accused unfit to be tried, determining the issue on the balance of probabilities. The finding was based substantially on expert psychiatric and psychological evidence tendered by consent, with proceedings conducted in a non-adversarial manner as required by the Act.

Multiple experts addressed the Presser criteria, which require that an accused understand the nature of the proceedings, follow the evidence, and give meaningful instructions to counsel. Associate Professor Einfeld concluded she could not understand the substantial effect of evidence against her and could only respond to simple or literal questions. Dr Westmore found that her unfitness stemmed primarily not from her intellectual disability but from her lack of social and emotional maturity, her extreme distractibility, and her inability to focus on straightforward questions. Dr Waters assessed her as also currently mentally ill, with symptoms consistent with schizophrenia, including hallucinatory voices and visions.

The court noted that Dr Westmore considered improvement possible with advancing age and maturity, but that at the time of the inquiry the accused clearly could not meet the fitness standard. Dunford J accepted the expert evidence as establishing unfitness on the balance of probabilities.

His Honour also expressed serious concern about the accused's placement at Mulawa Correctional Centre, an adult prison. Despite the existence of a specialist behavioural unit there, he found it inappropriate for someone of her age, mental state, and needs. He made a strong recommendation that she be transferred to a hospital facility under the Mental Health Act 1990 to receive appropriate psychiatric treatment.

Orders Made

  • The accused was found unfit to be tried
  • The accused was referred to the Mental Health Review Tribunal pursuant to section 14 of the Mental Health (Criminal Procedure) Act 1990
  • The accused was remanded to her former custody until further order
  • A strong recommendation was made that the accused be transferred to a hospital within the meaning of the Mental Health Act 1990, rather than remaining in a correctional services institution

Key Takeaways

  • Unfitness to be tried can be established primarily on the basis of social and emotional immaturity, not only on intellectual disability, provided the accused cannot meet the Presser criteria for meaningful participation in proceedings.
  • Under section 11A of the Mental Health (Criminal Procedure) Act 1990, a fitness inquiry may be determined by a judge alone where the accused validly elects to do so, provided the election is made with appropriate legal advice and the accused is capable of receiving that advice.
  • Fitness proceedings under section 12 of the Act are not conducted adversarially, and the court determines the issue on the balance of probabilities without placing the onus on either party.
  • Where an accused is found unfit, referral to the Mental Health Review Tribunal under section 14 of the Act follows as a consequential step.
  • The Supreme Court's observations about the placement of a mentally ill juvenile in an adult gaol underscore the relevance of the Mental Health Act 1990 as an alternative framework for detention and treatment in such cases, distinct from the correctional system.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 10, 11
- Mental Health (Criminal Procedure) Act 1990 (NSW), s 12
- Children (Detention Centres) Act 1987 (NSW)
- Mental Health Act 1990 (NSW)
- Crimes Legislation Amendment (Sentencing) Act 1999 (NSW), No. 94

Cases:
- R v Presser [1958] VR 45
- Kesavarajah v The Queen (1994) 181 CLR 230
- R v Mifsud (NSW Court of Criminal Appeal, 8 November 1995)
- R v Cornwell [1972] 2 NSWLR 1
- R v Hallacoglu (1992) 29 NSWLR 67